The Supreme Court has issued a far-reaching decision on how to determine whether an individual is protected by employment legislation.

The question was whether Uber drivers were ‘workers’, so as to have rights against Uber to the national minimum wage, paid holiday, and whistleblowing protection.

Uber argued that drivers contracted directly with passengers, with Uber just acting as an agent providing technology services and payment collection services.

The Supreme Court in Uber v Aslam www.bailii.org/uk/cases/UKSC/2021/5.html held the drivers were protected as ‘workers’. Tribunals should bear in mind the purpose of the employment legislation in protecting vulnerable workers. Criteria such as subordination, dependency and control were therefore important. Tribunals should not start with the terms of the written contract, which may have been imposed by the ’employer’ on a vulnerable worker. Contractual provisions seeking to present arrangements as falling outside employment protections might also be void under statutory provisions against contracting out.

The Supreme Court pointed to five factors in this case which together meant the transportation service was very tightly defined and controlled by Uber. There was a standardised service to passengers in which drivers were perceived as substantially interchangeable and from which Uber, rather than individual drivers, obtained the benefit of customer loyalty and goodwill.

This was not an Equality Act case, but it should also apply to claims under the Equality Act. In fact the Supreme Court commented that the Equality Act ’employment’ definition has been held to have substantially the same effect as the ‘worker’ definition.

More: Workers>Uber v Aslam.