After Uber: Purposive Interpretation and the Future of Contract

Hitesh Dhorajiwala, with Joe Atkinson, authored "After Uber: Purposive Interpretation and the Future of Contract" for the UK Labour Law Blog.

"The Uber BV v Aslam [2021] UKSC 5 (‘Uber (SC)’)judgment from the Supreme Court represents the final chapter in the long-running saga of determining the employment status of drivers who provided trips to passengers via the Uber app. As highlighted by Valerio De Stefano, the finding that the drivers must be classed as workers is part of a wider trend of decisions rejecting arguments that platform workers fall outside the regulatory scope of employment law. This blog considers key aspects of the Supreme Court’s reasoning, relating to the ‘purposive approach’ and the role of contractual documentation in determining employment status, as well as some of the practical consequences of the judgment for workers.

As readers will be aware, the case concerned Uber drivers who sought to stablish ‘worker’ status for the purposes of s 230(3)(b) Employment Rights Act 1996, the National Minimum Wage Act 1998, and the Working Time Regulations 1998. According to the written documentation, the drivers contracted with Uber BV (a Dutch parent company) on terms which purported to exclude worker status, and had no formal contractual relationship with Uber London Ltd. However, Uber London Ltd held the Private Hire Vehicle Licence to operate in London, and in practice exercised a variety of forms of control over the drivers. As outlined at paragraphs [96] et seq of the Uber (SC) judgment, Uber London Ltd exercised significant control over the drivers by determining the fares charged to passengers, retaining absolute discretion to accept or decline passenger ride requests, automatically logging off drivers who did not accept a certain number of rides in a row, and placing restrictions on the communications that drivers could have with the passengers they were purportedly contracting with.

Uber’s position was that the relationship was explained by these written contractual arrangements, with Uber London Limited merely acting as a booking agent, such that no ‘worker’ relationship could exist between the drivers or any Uber entity. By contrast, the drivers successfully argued in the Employment Tribunal (‘ET’), Employment Appeal Tribunal (‘EAT’), Court of Appeal, and Supreme Court that they were in fact the ‘workers’ of Uber London Ltd, notwithstanding the supposed absence of any direct contractual relationship between the drivers and Uber London Ltd. In reaching this conclusion the Supreme Court gave a ground-breaking judgment that, although leaving some important questions unanswered, has potentially radical implications for the law relating to employment status."

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After Uber: Purposive Interpretation and the Future of Contract

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