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doctor_fact | 8 years ago

On what basis?

“92. ... The drivers provide the skilled labour through which the organisation delivers its services and earns its profits. We base our assessment ... in particular on the following considerations. (1) The contradiction in the Rider Terms between the fact that ULL purports to be the drivers’ agent and its assertion of “sole and absolute discretion” to accept or decline bookings. (2) The fact that Uber interviews and recruits drivers. (3) The fact that Uber controls the key information (in particular the passenger’s surname, contact details and intended destination) and excludes the driver from it. (4) The fact that Uber requires drivers to accept trips and/or not to cancel trips, and enforces the requirement by logging off drivers who breach those requirements. (5) The fact that Uber sets the (default) route and the driver departs from it at his peril. (6) The fact that UBV fixes the fare and the driver cannot agree a higher sum with the passenger. (The​ ​supposed​ ​freedom​ ​t​​o​ ​agree​ ​a​ ​lower​ ​fare​ ​is​ ​obviously​ ​nugatory.) (7) The fact that Uber imposes numerous conditions on drivers (such as the limited choice of acceptable vehicles), instructs drivers as to how to do their work and, in numerous ways, controls them in the performance of their duties. (8) The fact that Uber subjects drivers through the rating system to what amounts to a performance management/disciplinary procedure. (9) The fact that Uber determines issues about rebates, sometimes without even involving the driver whose remuneration is liable to be affected. (10) The guaranteed earnings scheme (albeit now discontinued). (11) The fact that Uber accepts the risk of loss which, if the drivers were genuinely in business on their own account, would fall upon them. (12) The fact that Uber handles complaints by passengers, including complaints about the driver. (13) The fact that Uber reserves the power to amend the drivers’ terms unilaterally.”

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SyneRyder|8 years ago

Wow. If this ruling holds, it could also suggest that App Store developers are employees of Apple / Google in the UK. Several of those points apply just as much there, just replace driver with 'developer' and passenger with 'customer':

* "controls the key information (in particular the passenger’s surname, contact details and intended destination) and excludes the driver from it"

* "determines issues about rebates, sometimes without even involving the driver whose remuneration is liable to be affected"

* "handles complaints by passengers, including complaints about the driver"

* "subjects drivers through the rating system to what amounts to a performance management/disciplinary procedure"

DoveBrown|8 years ago

The tests for where someone is a self-employed contractor vs an ("disquised") employee are Control (how much control does the person have over how they do task), Substitution (do they personally have to do the task) and Mutuality of obligation (how tied are they together).

I think the ruling makes it clear that Uber has a huge amount of control over the driver, how they do their job and how many fares they take (with penalties). Since Uber is interviewing the drivers and requiring that that driver show up for the fare, it's not clear that a driver can substitute someone else for their fare). You can argue that there is an obligation on the specific driver to complete fares for Uber and the driver depends on Uber to supply fares. The ruling makes sense that they are employees as UK law defines the term.

I don't think you can argue that an App Store developer is a disguised employee in the same way, Apple/Google have very little control over how I write my app, they don't care if I write it or I subcontract and I don't think Apple have any expectation that I will write the app.

kitd|8 years ago

The difference is that apps are in competition with each other and the app store is more like a marketplace for developers. There is no physical interaction between developer and buyer.

Uber could never call itself a "marketplace" for drivers. It operates much more like a driver agency.

Edit: there are genuine online booking agencies for drivers in London, like http://www.kabbee.com, which act as a front-end for independent minicab drivers. I think this is much more that way it should operate if the drivers weren't employees, as Uber argues.

mcguire|8 years ago

I would suspect (4), (5), (6), and (7) are more problematic.

rrhd|8 years ago

but not even close to all of these apply. Some big ones don't apply, e.g. pricing.