LUGHAN DEANE looks at the landmark ruling against the digital platform behemoth Uber, and its claims that Uber drivers are independent contractors.
In a landmark ruling, an employment judge working for the UK Employment Tribunals has systematically and brutally dismantled Uber’s claim that its drivers are independent sub-contractors and not employees. Drivers, the judges have decided, who have the app switched on and are in a position to take passengers should be considered “workers” and should receive all the benefits afforded to workers under the relevant law.
Unusually for a legal document, the ruling itself makes for fascinating reading. It moves from quoting Hamlet (Uber “doth protest too much” about not employing its drivers) to discussing lap dancers at a Stringellow nightclub (like Uber drivers they were considered independent contractors) and then on to Milton’s sonnets (Uber drivers waiting for a job – ie between lifts – are, according to the judges still working: “they also serve who only stand and wait”).
Uber was represented at the tribunal by Joanna Bertram (Uber’s regional general manager for the UK, Ireland and the Nordic countries). The derision with which the judges treat her testimony and Uber’s promotional literature is almost palpable throughout the ruling.
In her evidence Ms Bertram was, it seems, very careful not to use any language that could imply that Uber hires its drivers as conventional employees. Referencing her obvious caution, the judges remarked: “Ms Bertram chose her words with the utmost care. But in publicity material and correspondence those speaking in Uber’s name have frequently expressed themselves in language which appears incompatible with their central case before us.”
The judges referred to “the many things said and written in the name of Uber in unguarded moments” that seem to suggest the company knew well that its drivers were de facto employees. The judges cite specific examples of these unguarded remarks such as Uber’s references to “Uber drivers” or “our drivers” or public boasts made by Uber about “providing job opportunities” and generating “tens of thousands of jobs in the UK.”
When the judges confronted Ms Bertram with an example of this language she dismissed it, calling it a typo. In response, the judges said “to our considerable surprise, Ms Bertram attempted before us to dismiss this as a typographical error”. They went on to say that they were “not at all persuaded by Ms Bertram’s ambitious attempts to dismiss these [remarks] as mere sloppiness of language”.
The notion that Uber in London is a mosaic of 30,000 small businesses … is to our minds faintly ridiculous
The judges were no less scathing about the endless legal jargon used by Uber to establish its various carefully calibrated (emphatically-not-employment) relationships. They refer to Uber’s various agreement documents as “dense legal documents couched in impenetrable prose.” They accused Uber of “resorting in its documentation to fictions, twisted language and even brand new terminology.” They said that Uber was “precluded from relying on its carefully crafted documentation because it bears no relation to reality.”
The judges more or less laugh at the manner in which Uber claims to organise its business. They say that “the notion that Uber in London is a mosaic of 30,000 small businesses … is to our minds faintly ridiculous.”
They go on to provide a summary of Uber’s argument: “Uber’s case is that the driver enters into a binding agreement with a person whose identity he does not know (and will never know) and who does not know and will never know his identity, to undertake a journey to a destination not told to him until the journey begins, by a route prescribed by a stranger to the contract [Uber], from which he is not free to depart (at least not without risk), for a fee which is a) set by the stranger, and b) is not known by the passenger, c) is calculated by the stranger and d) is paid to the stranger.” “The absurdity” they go on to say “of these propositions speaks for itself.”
Uber’s main argument to the tribunal was that it is not a transport company. Rather, it claims, it is a technology company. Its only function, according to its lawyers, is to use its app to link passengers looking for transport with independent contractors willing to provide those lifts for a fee.
The judges were clearly not impressed by this argument. Quoting an American ruling, they said “Uber does not simply sell software, it sells rides. Uber is no more a technology company than Yellow Cab is a technology company because it uses CB radios to dispatch taxi cabs.”
The central argument from the judges, meanwhile, that convinced them to find in the claimants’ favour, revolved around the level of control Uber exerts over drivers. If, as Uber claimed, it is simply a tool to link contractors with passengers, then this level of control is totally inappropriate. The judges stated that Uber “recruits, instructs, controls, disciplines and, where it sees fit, dismisses drivers.”
Uber has already launched an appeal against this decision. If the decision is upheld, it is likely to have a significant impact on the ability of platforms like Uber to operate in the UK. UNITE has set up a special unit to look at the problem of ‘bogus self-employment’.