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Uber and Out Again

16th November 2017

By Andrew Knorpel, Head of the Employment team

Employment status has twice again been in the news in the last week. Firstly, the EAT gave their judgment in the latest round of the Uber litigation, upholding the judgment of the employment tribunal in all respects.

Many of Uber’s submissions on appeal related to their argument that they were simply the “agent” of the drivers, concluding contracts with passengers on their behalf. However, the EAT’s focus was on answering the question “when the drivers are working, who are they working for?” In answering this question, the EAT held that the tribunal had considered the right legal principles, such as the significant level of integration of drivers into Uber’s business model and their control of those drivers. The drivers were not permitted to enter into any kind of business relationship with their passengers (whose personal details were withheld from them), negotiate the terms of their deal with those passengers or negotiate the terms of their own relationship with Uber.

Taking these matters into account in the round, the EAT held that the tribunal was entitled to reach the decision that it did. Uber has apparently already indicated its intention to appeal and may ask for its case to be joined in the Supreme Court with that of Pimlico Plumbers which is due to be heard on 20 and 21 February 2018.

Of course, not all ‘gig economy’ business models are quite as integrated or controlling as that of Uber, which means that many organisations will continue to dispute allegations by their self-employed partners who contend that they should also be considered to be workers, entitled (amongst other things) to holiday pay and the national minimum wage.

In the meantime, it has also been reported that Jess Varnish, the former Olympic cyclist, is suing both UK Sport and British Cycling. Apparently, she is claiming sex discrimination, detriment for whistleblowing, victimisation and unfair dismissal. This latest information was revealed after an employment tribunal preliminary hearing which rejected the Respondents’ applications for her claims to be struck out or for Ms Varnish to be required to pay a deposit of up to £1,000 per allegation on the basis that her claims had either no or little reasonable prospects of success respectively. Please ignore the references in various media to the possibility of her assets being “seized pending the case” – that doesn’t happen. We understand that the next stage of these proceedings will be to determine Ms Varnish’s employment status at a further preliminary hearing in April 2018 where she will be arguing that she was employed, rather than self-employed.

In due course, you will be able to access copies of the tribunal’s judgments here, where all judgments have been reported since February 2017.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2017.

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