The Supreme Court of the United Kingdom delivered its judgment on a claim brought against Uber BV (and other Uber companies) by some Uber drivers (see Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5). The main issue that arose in this case was whether the respondents were workers of Uber and the Supreme Court held that they were.
What is the definition of “worker” under the UK Employment Rights Act 1996?
Section 230(3) of the UK Employment Rights Act 1996 defines “worker” as “an individual who has entered into or works under (or, where the employment has ceased, worked under) –
(a) a contract of employment; or
(b) any other contract, whether express or implied and (if it is expressed) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker’s contract shall be construed accordingly.”
The question was whether Uber drivers fall within the definition of section 230(3)(b) above and particularly whether there is a contract whereby a Uber driver undertakes to perform work or services for Uber.
What were the reasons given by the Supreme Court?
The Supreme Court held that it is important “to consider the relative degree of control exercised by Uber and drivers respectively over the service provided to [passengers]. A particularly important consideration is who determines the price charged to the passenger. More generally, it is necessary to consider who is responsible for defining and delivering the service provided to passengers. A further and related factor is the extent to which the arrangements with passengers afford drivers the potential to market their own services and develop their own independent business.”
In determining the degree of control exercised by Uber and Uber drivers respectively over the service provided to passengers, the Supreme Court laid down five aspects:-
1. The fares for the rides are set by Uber and Uber drivers are not permitted to charge more than the fares set by Uber.
2. The contractual terms on which Uber drivers perform their services are dictated by Uber.
3. Uber itself retains the absolute discretion to accept or decline any request for a ride by firstly controlling the information provided to Uber drivers such as the passengers’ destinations and secondly monitoring the rating of Uber drivers.
4. Uber exercises a significant degree of control over the way in which Uber drivers deliver their services such as “suggesting” the route to be taken by a Uber driver to reach the destination. Although it is not compulsory to follow the route indicated by the app but passengers may complain if a different route is chosen and the driver bears the financial risk of any deviation from the route indicated by the app which the passenger has not approved.
5. Uber restricts communication between passengers and Uber drivers to the minimum necessary only to perform the particular trip and takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride. Uber drivers are also specifically prohibited from exchanging contact details with a passenger or contacting a passenger after the trip ends other than to return lost property.
To what extent is the Supreme Court’s decision applicable to gig business in Malaysia?
The employment law in Malaysia does not have a similar category of “workers” as in the UK. Therefore the decision of the Supreme Court does not have much impact in Malaysia. However, the factors which the Supreme Court took into consideration in determining the degree of control may be relevant here as the control test is one of the ways that the courts use to determine whether a person is an employee or an independent contractor.
It is also worth noting how the Supreme Court compared Uber with other digital platforms that operate as booking agents such as platform through which customers can book accommodation. In making such comparison, the Supreme Court pointed out that the accommodation offered is not a standardised product defined by the platform. The suppliers, i.e. hotels or homestay owners, are responsible for defining and delivering whatever level of service in terms of comfort and facilities they choose to offer. Regarding rating system, the Supreme Court pointed out that the ratings are published in order to assist customers in choosing among different suppliers and they are not used as a system of internal performance measurement and control by the platform over suppliers. Lastly, the platform does not restrict communication between the supplier and the customer or seek to prevent them from dealing directly with each other on a future occasion. Therefore, suppliers are properly regarded as carrying on businesses which are independent of the platform and as performing their services for the customers who purchase those services and not for the platform.
