Empowering the Freelance Economy

Are Contractors now King? Uber Supreme Court judgement has wider implications for all UK freelancer rates and contracts

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The ‘Uber’ Supreme Court case judgment Aslam & Farrar v Uber if tested wider could instigate a major shakeup of the UK’s freelancer and contractor economy. Potentially, a welcome one for independent workers, that is if they retain their flexibility and hiring companies play ball.

The Aslam & Farrar v Uber judgment has “implications for everyone engaged in the gig economy,” according to a statement put out by Cloisters Chambers, whose Barristers acted on behalf of Uber drivers, Yaseen Aslam and James Farrar. The Court’s decision entitles drivers to be paid minimum wage and holiday pay and protects them from detriment for whistleblowing (s.230 of the Employment Rights Act).

These may be welcome changes for most drivers, but many chose to join the hail cab industry to have control and flexibility over their working hours. Many fear, that as an employee they will no longer have that freedom and may have to give up their ‘gig’ altogether.

Contractors – can they really call the shots?

Even if you do not identify yourself as a gig worker, once you start digging deeper into the case summary, particularly how hiring companies ‘determine’ and ‘dictate’ their rates and contracts, you can start to see how the freelancer economy could be in for a major shakeup.

If the judgment does start to be tested across the freelancer economy, outside IR35 Contractors and Freelancers, in particular, may now be fully responsible for determining their rates or at least negotiate them in earnest and supplying their own contracts rather than signing one supplied by the hiring company.

Here’s why. In relation to Uber and its drivers specifically, the Supreme Court held that the drivers fell within the definition of “worker” because:

  • They had no say in the remuneration paid to them for their work, which is determined entirely by Uber.
  • Secondly, the contractual terms on which drivers provide their services are dictated by Uber.
  • Thirdly, once a driver is logged on to the Uber app, his or her ability to accept or refuse requests for rides is constrained by Uber. That is, if his or her acceptance falls below a certain level determined by Uber, he or she will be logged off the Uber app and prevented from logging back on for a time.
  • Fourthly, Uber exercises a significant degree of control over the way drivers deliver their services by vetting the type of car they may use, directing them to the location at which they pick up passengers and from there to the passenger’s destination. Uber also uses the driver rating system as an internal tool for managing driver performance and making decisions to terminate the access of certain drivers.
  • Fifthly, Uber restricts the communication between the driver and the passenger to the minimum required for the driver to undertake the trip and Uber takes active steps to prevent drivers from establishing any relationship with passengers which could extend beyond one trip.

In a Cloisters Chambers news release it was stated, “Taking these factors together, the Supreme Could held that the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. It is designed and organised to provide a standardised service from which Uber, rather than individual drivers, obtains the benefit of customer loyalty and goodwill. As a result, it was clear that drivers are ‘workers’.”

(Left to Right) Jason Galbraith-Marten QC and Sheryn Omeri of Cloisters Chamber. Photo Source: Cloisters Chambers

According to Cloisters Chambers their Barristers Jason Galbraith-Marten QC and Sheryn Omeri won one of the most important employment cases of our generation.

“This is a significant victory for Uber drivers in the UK and indeed, for all gig economy workers,” said the Cloisters statement.

Flexibility key to freelancers’ survival

With this case now sealed in the annals of employment law, the word gig may slowly disappear from our daily lingo. Policymakers will have to ensure they understand the wider implications of any future employment test cases because the last thing the Treasury will want is to see is 10% of the economy shrink considerably or disappear altogether and end up on the bread line.

Cloisters cases shaking things up

• Aslam & Ors v Uber BV and Ors [2019] ICR 297

B v Yodel Delivery Network Ltd (C-692/19) [2020] IRLR 550, CJEU, acting for the successful Respondent in a case concerning the employment status of Yodel delivery drivers.

• Turner v DPD Group UK Ltd [2019] Case no. 3325938/17, acting for the successful Respondent in a case concerning the employment status of DPD van drivers.

• Uber BV v Aslam [2018] EWCA Civ 2748, CA, successfully defending decision of the EAT [2018] ICR 453 re: the employment status of Uber minicab drivers.

• Dewhurst v Citysprint UK Ltd [2017] 1 WLUK 16, acting for the successful Claimant in a case concerning the employment status of Citysprint cycle couriers.

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