Author: Paul

Legal Update:  Autumn 2016

1. Uber Drivers are Workers

The Employment Tribunal found that Uber drivers were not self-employed nor independent contractors but were workers who are entitled to essential workers’ rights for the purposes of the Employment Rights Act 1996 and therefore are entitled to the following: to be paid the National Minimum Wage, 5.6 weeks paid annual leave, a 48 hour average working week and rest breaks and whistleblowing protection.

Uber’s argument was that the drivers were not entitled to these fundamental rights. They argued that it was a technology company not a taxi provider and that it did not provide a transportation service. They argued Uber drivers worked for themselves as self-employed businesses. Thankfully, the Tribunal saw through this and was very critical of Uber stating that it did not reflect the reality of what was happening. They stated that Uber had resorted to fictitious, and even brand new, terminology in its documentation. Their suggestion that 30,000 Uber drivers were all small businesses operating in and around London linked only by a common technology platform was ridiculous.

Some of the relevant factors behind the decision include:

• Uber purports to be the drivers’ agent yet asserts that it has sole and absolute discretion to accept or decline bookings;
• Uber interviews and recruits drivers and to be admitted and they must attend an induction, watch a video and produce documents to Uber such as NI certificate, both driving licences, Public Carriage office licence, PHV licence, log book, MOT and Insurance Certificate;
• Uber controls the key information e.g. passenger surname, contact details and the intended destination which is not available to the driver;
• Drivers are required to accept, and not cancel trips and drivers in breach of this are given warnings and logged off the system;
• Uber fixes the fare;
• Uber imposes numerous conditions on drivers (e.g. limiting the choice of acceptable vehicles; they prefer black or silver), instructs them how to work and controls them in performance of their duties;
• Uber has a rating system which amounts to a performance management/disciplinary procedure;
• Uber determines rebates to the passenger often without involving the driver;
• Uber handles complaints made by the passenger including complaints about the driver;
• Drivers were not permitted to share accounts; IDS or be replaced by a substitute.

As regards working time, the Tribunal found that a driver is “working” when he has switched on the APP, is in the territory in which he is licenced to use the APP and is ready and willing to accept trips.

Uber’s arguments included that drivers are only working when they are driving passengers was rejected. It is an essential part of Uber’s business that there is always a pool of drivers ready to be called upon when demand for driving services arises, so being available is an essential part of the service rendered by the driver. The Tribunal did agree with Uber that time spent travelling to and from the territory (i.e. from home) would not form part of working time in the circumstances. These findings will have implications for the calculation of the National Minimum Wage payment, as at present drivers receive fares from customers but there is no remuneration for the time spent waiting.

When the APP is switched off there is no contractual obligation to provide driving services, but when switched on, the legal analysis is different. The Tribunal reached the conclusion that when the driver has switched on the APP and is in the territory he is authorised to work and is able and willing to accept assignments, so long as those conditions remain he is under a worker contract. This would also cover some drivers where the driver had passengers on board and some where they were waiting, the reasoning was that Uber aim to maintain a pool of drivers to satisfy demand. The Tribunal found that in order to satisfy that demand, being available was essential part of the service. If the Tribunal were wrong on that point they found that at the very latest the driver is working for Uber from the moment when he accepts any trip.

It followed, according to the Tribunal that the driver would be “working” under his contract while returning to the territory with a view to undertaking more trips but the point was not raised by the parties and not debated so no definite ruling was made on this point.  The Tribunal found that subject to the case where a trip takes him or her outside their territory the Uber drivers working time starts as soon as he or she is within their territory, has switched on his APP and is ready to willing to accept trips. Time spent by a driver driving from home to the territory he works in and returning home does not form part of his working time.

The Tribunal were unable to determine whether journeys outside territories amounted to working time because it was not argued before the Tribunal. If the Tribunal were wrong they concluded that working time begins at the latest when a driver accepts a trip and ends when the trip is completed. But hours spent returning from an out of territory trip back to the territory where the trip had begun in the territory could count as reckonable time for the purposes of Reg 47 of National Minimum Wage Regulations.

The case is fact specific to Ubers business model but could catch all bogus self-employment situations and have implications for what is referred to as the “gig” economy.

Uber may appeal the decision and we will report to you further with any developments.

2. Settlement Agreements and Tribunal Jurisdiction.

The EAT (Glasgow City Council v Dahhan) upheld a decision of the Tribunal that the Tribunal does have jurisdiction to assess whether an otherwise valid settlement agreement is unenforceable because one of the parties lacked the mental capacity to enter into it. In this case the Claimant was a teacher alleging victimisation; discrimination and signed the agreement; a couple of days later the Claimant wished to withdraw from the agreement and proceed to a Tribunal on the basis that they did not have the mental capacity to sign the agreement.

The EAT confirmed that the Tribunal does have jurisdiction to assess whether the Settlement Agreement is otherwise valid. The Tribunal has a duty to consider when raised by a party the mental capacity of the individual at the time of signature and if after reviewing the evidence they deem the individual did not have capacity then the agreement will be unenforceable in its entirety.

3. ACAS : “Guide to Sexual Orientation: Key Points for the Workplace”

This booklet provides insight into how sexual orientation discrimination can occur in the workplace and how to prevent it. It covers recruitment; pay; terms; promotion; training; and dismissals.

4. Union Forms and Help lines

To remind you the following forms should be completed when member requires legal representation and advice:

L1: Request for Personal Injury advice and representation; these should be completed by Scottish; Southern Irish and Off Shore workers and sent by the Regions to the RMT Legal Department.

In the case of England; Wales and Northern Ireland members can complete an L1 but forms should be sent direct to Sheffield call handling centre. To avoid paper work members should call direct 0845 712 5495 which is more direct and cuts down paperwork and time.

L2: all requests for legal advice and assistance in relation to an employment issue. All L2 should be submitted to the Regional Office as these need to be signed off by the Regional Officer and papers sent with them before the RMT Legal Department can deal with them.

L3: all requests for legal assistance in a work related criminal or driving (work related) offences or driving licencing appeal. The decision to grant this is discretionary and based on the facts and prospects of success. These forms must be signed off by the Branch Secretary who must support the request. All documents and court documents must be sent with the L3 to the RMT Legal Department at Maritime House. Old Town Clapham London SW4 0JW.

In the case of non-work related crime and driving offences members should be given the criminal helpline number 0765 911 8181 and in Scotland 0800 328 1014. Lines are open 24 hours a day 7 days per week.

Members who are arrested by police and or questioned under caution should, in the first instance, call the helpline numbers.

General Advice on all work and non-work related and Union matters should call 0800 376 3706 in England Wales and Ireland and Offshore. Scotland 0800 328 1014. The lines are open Monday to Friday 08.00 to 18:00 hours and 09.30 to 16:00 hours on Saturday.

Free Wills: Members enquire as to free wills from time to time. We can facilitate a free will for basic wills however, anything complicated will be charged at preferred rates for RMT members.  I am in the process of arranging with some of our lawyers to provide an on- line service and shall report to you again shortly when details have been finalised. In the meantime should members enquire please direct them to the following contacts.

Members in England, Wales and Northern Ireland can call 0845 712 5495 or email Katew@bbhlegal.co.uk for a free will pack.

Members in Scotland should call Drummond Miller on 0800 328 1014.

Offshore workers should call Thompsons in Scotland on 0141 221 8840.

Members in Southern Ireland should call 080 376 3706.

Yours sincerely,

Mick Cash

General Secretary