Uber v Aslam: The end of the beginning?

On 19 February 2021, the Supreme Court released its decision in Uber BV and others v Aslam and others [2021] UKSC 5, ruling that the appellants (who were Uber drivers) were ‘workers’ under the Employment Rights Act 1996. This meant they were entitled to the appropriate employment benefits such as holiday pay and the national minimum wage.

The Supreme Court held that the Employment Tribunal, whose findings were upheld in the Employment Appeal Tribunal and the Court of Appeal, was entitled to conclude that, by logging onto the Uber app in London, the claimant drivers came within the definition of a ‘worker’. The tribunal was also entitled to conclude that the drivers were working and entitled to the national minimum wage whenever they were logged on to the Uber app, not just when they were driving passengers.

Mark McLaughlin has set out the facts and the decision succinctly in his note. Here I want to consider some of the wider implications of the judgment.

Uber not an agency

Two things struck me as particularly significant about the Supreme Court’s decision.

The first is that Uber claimed to be acting as agent for the drivers in collecting fares from the passengers on the drivers’ behalf, and that the drivers were ‘to be regarded as performing services solely for and under contracts made with passengers through the agency of Uber London’ (at para 41 of Lord Leggatt’s judgment).

The Supreme Court judges found that, on the contrary, Uber London contracted with the passenger as principal to carry out the booking, which it did by means of its employees or sub-contractors (i.e. the drivers). Uber London purported to be agent for the drivers when there was no evidence that the drivers themselves had authorised any Uber company to act as their agent.

Limitations of written agreements

The second point was that a written contract does not necessarily contain all the actual terms of the agreement, nor does it necessarily represent the parties’ true agreement just because it has been signed by them.

Other relevant factors included the relative bargaining position of the parties. The arrangement with the drivers was in the form of a standard document drawn up by Uber’s lawyers and presented to the drivers as terms they had to accept if they wished to continue using the Uber app.

Besides, if the written contract were to be accepted as the starting point in classifying the parties’ relationship, it would give Uber power to decide for itself if it wished to be bound by the legislation protecting workers. And the Employment Rights Act 1996 specifically provides that any term in any contract that purports to exclude or limit the operation of any provision of that Act is void.

Lord Leggatt cited CF Autoclenz Ltd v Belcher [2011] UKSC 41; [2011] ICR 1157 at para 35: ‘the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part.’

In other words, as a wise lawyer once said to me, ‘You can call a bar of soap a bar of chocolate if you like, but it is still a bar of soap’.

Implications for tax

Although Uber v Aslam is an employment case, it has certain implications for tax purposes.

Uber v Aslam opens the door for other gig economy workers who work for their engagers on similar terms to those between Uber and its drivers to claim their right to holiday pay and the minimum wage. However, also, perhaps more controversially, it raises the question whether HMRC should now call on those who engage workers on such terms to operate proper payrolls and account for PAYE and NIC.

It is impossible to say what the result of such a tussle might be, given that tax law lags behind employment law in not assigning a status to workers, only to employees and the self-employed. We might have to wait years while the parties battle it out.

Uber and VAT

Meanwhile Uber is involved in another case directly concerned with a tax matter – an upcoming judicial review hearing in which the Good Law Project (GLP) is claiming that HMRC should have issued VAT assessments against Uber London, based on GLP’s VAT analysis of Uber’s operating model.

The sum at stake could amount to about £1.5 billion.

There is a long way to go before those proceedings are concluded one way or the other. If the result goes against Uber, there will be implications for other operators in the gig economy. Even if the GLP loses on some narrower issue, such as whether it has standing to bring judicial review proceedings, HMRC might eventually reach its own conclusion about Uber’s and others’ tax and VAT liabilities.

Whatever the result, the decision in Uber v Aslam will be an important influence in terms of its analysis of the contractual relationship between Uber and its drivers.

The future

Uber v Aslam is a lead case behind which 23 appeals are stacked up. Two claimants, Mr Aslam and Mr Farrar, were selected by the Employment Appeal Tribunal as representative of the remaining appellants. Altogether there are about 30,000 Uber drivers operating in the London area and 40,000 in the UK as a whole.

According to The Guardian newspaper, Uber has responded to the effect that the ruling only applies to a few drivers – and that since then, Uber has since changed the terms of drivers’ engagement to give them more control over their earnings and greater protection. Or, as some might conclude, to introduce more pointers to the drivers being self-employed.

Advisers to the drivers, on the other hand, are saying that any changes made by Uber to the terms and conditions of their engagement do not alter the level of control Uber exercises over them when working. If Uber persists in this argument, other drivers may be obliged to go back to the Employment Tribunal to prove their worker status afresh, and the show will go on.

Put in Churchillian terms, we are nowhere near the end, but given the trend of recent employment law cases on the status of gig economy workers, this latest Supreme Court decision probably marks the end of the beginning.

Postscript

On Wednesday 16 March, early morning headlines carried the announcement by Uber that all its 70,000 UK drivers would be guaranteed a minimum wage, holiday pay and pensions. The BBC article contained a video of Jamie Heywood, the regional general manager for Northern Europe at Uber, saying that the Supreme Court judgment had ‘provided clarity into what a worker really meant’, and that gave Uber ‘a path forward’ whereby it could combine the protection of worker status with the flexibility that drivers want. 

However, according to the article, Uber’s climbdown applies only prospectively from the date of the announcement, not retrospectively. In addition, the Head of the TUC, Frances O’Grady, is quoted as pointing out that drivers will only earn the minimum wage while they are actually driving, whereas the Supreme Court held that they were ‘working’ for the purposes of minimum wage entitlement from when they logged on to the Uber app until they logged off.

So there may be further court battles while drivers try to secure past entitlements, but the Supreme Court’s judgment followed by Uber’s announcement are clearly important developments in terms of the wider gig economy.

Robin Williamson

Written by Robin Williamson

Robin Williamson MBE CTA (Fellow) is an author and commentator on tax, welfare and public policy. He was technical director of the CIOT’s Low Incomes Tax Reform Group from 2003 to 2018 and a part-time senior policy adviser at the Office of Tax Simplification from 2018 to 2019. In May 2020 he won the lifetime achievement award at the Tolley Taxation Awards. He was recently appointed UK country reporter to the Observatory on the Protection of Taxpayer Rights at the IBFD.

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