The long awaited decision by the Supreme Court in Uber v Aslam was handed down on Friday 19 February. The Supreme Court agreed with the decisions of the earlier courts, finding that Uber drivers are ‘workers’.

This decision doesn’t just affect Uber drivers but has potentially far reaching implications as it opens the gates to claims from an estimated further 5 million people working in the so-called gig economy.

Despite Uber’s assertions that their drivers were self-employed subcontractors as per their contractual documentation (and no doubt other companies also follow this approach) and only entitled to pay when they were on a fare-incurring journey, the court found that the drivers are, in fact, workers, and that starts from the moment they switch on their app indicating their availability for work.

The court considered whether (as Uber argued) the written contract should be the starting point in considering whether the drivers held worker or self-employed status. The court disagreed, deciding that actually the legislation should be the starting point and should the paperwork conflict with this position, it would render the contract as to have no effect and be disregarded.

The court noted that despite Uber insisting self-employed status meant that drivers had more freedom and flexibility, in actual fact, there was actually limited control by each driver over the terms of their work - in particular, over the price to be charged to the passenger,  who was “responsible for defining and delivering the service provided to passengers” and whether drivers were able to market their services or derive any relationship or communication with the passenger beyond the bare necessity required to carry out a specific ride.

This decision means that Uber drivers will now have a claim (including backpay) to be paid minimum wage - the amounts to be claimed will depend on whether cases are heard in the employment tribunal or county court. Drivers will also have a claim to unpaid annual leave each year (up to 5.6 weeks). Note, this does not give the drivers ‘employee’ status (which would mean rights such as to redundancy payments or protection from unfair dismissal).

This case rests on specific facts about the relationship between Uber and its employees.  The Supreme Court has found that Uber’s overarching control in setting maximum fares, imposing penalties  if drivers cancelled too many requests meant that they worked for Uber and not themselves on their own account.

Carrie Beaumont, Partner at Ortolan Legal said, “this case reminds us that it increasingly important for commercial due diligence and legal advice to be sought to be taken to establish control tests and not simply seeking to rely on contracts which do not reflect the commercial reality of the relationship.  The Courts have clearly shown they will look behind the words.”