In Uber BV and Others v Aslam and Others, the Supreme Court looked in detail at the relationship between the US lift hailing company Uber and its drivers and ruled unanimously that Uber drivers are workers and are not self-employed.
Uber drivers Mr Aslam, Mr Farrar and others first submitted an employment status claim to the Employment Tribunal (ET) in 2016. The court disagreed when Uber argued that the drivers were independent contractors, holding that they were “workers” under employment legislation.
Following several appeals by Uber the case ended up in the Supreme Court in December 2020, and the court ruled in February that the company’s drivers were entitled to basic rights such as paid holiday, rest breaks, the national minimum wage, and pension rights.
The Court set out five key factors in justifying its decision:
- Uber sets the fares for each ride, not the drivers, whereas self-employed drivers set their own fares;
- Uber sets the terms and conditions of using its service;
- drivers can be penalised for cancelling or not accepting rides, which can prevent them from working.
The Supreme Court held that care workers who are expected to sleep at, or near, their workplace but be available “on call” during the night, are not entitled to the national minimum wage for their entire duration of the sleep-in shift. They cannot be described as actually working under regulation 30 of the National Minimum Wage Regulations 2015 – instead they are “available for work” under regulation 32.
Carers can only be entitled to the national minimum wage in situations where they are awake for the purposes of working. This means they need to have duties to perform such as waiting for a call to assist or distributing breakfast to the residents of a care home.
For many years there has been a range of inconsistent authorities on the issue of calculating the national minimum wage for sleep-in shifts. The effect of the Supreme Court’s decision is that a number of earlier decisions on sleep-in shifts can no longer be relied upon. Therefore in some respects, the decision has provided welcome clarity and will provide relief to many employers in the care sector who were concerned about claims for underpaid wages.