Employment law
NMW and whistle-blower protection. Importantly, they would still not have certain rights such as unfair dismissal protection nor many other rights that are exclusive to ‘employees’. The ET, EAT, and the Court of Appeal all decided that the drivers were ‘workers’ despite Uber’s argument that it simply acted as an ‘intermediary’ for the drivers and their passengers. The courts found that whilst it could be possible for an organisation to operate in the way that Uber claimed it did, on analysis of its operation, statements, and systems, this was not the case here. At ET stage, the court listed eleven points that they believed demonstrated the reality of the arrangement, including the fact that the drivers were not aware of their passengers’ identity, that they picked them up to take them to unknown destinations, and received payments at a fee calculated by Uber. Uber took the case to the Supreme Court which unanimously dismissed the appeal, emphasising the following five aspects of the findings made by the ET which justified its conclusion that the claimants were working for and under contracts with Uber. ● Where a ride is booked through the Uber app, it is Uber that sets the fare and drivers are not permitted to charge more than the fare calculated by the app. It is therefore Uber which dictates how much drivers are paid for the work they do. ● The contract terms on which drivers perform their services are imposed by Uber and drivers have no say in them. ● Once a driver has logged onto the Uber app, the driver’s choice about whether to accept requests for rides is constrained by
the company. (It can, for example, impose what amounts to a penalty if too many trip requests are declined or cancelled by automatically logging the driver off the Uber app for ten minutes.) ...given all 70,000 of its UK drivers a guaranteed minimum wage, holiday pay, and pensions. ● Uber also exercises significant control over the way in which drivers deliver their services including by the use of a ratings system whereby passengers are asked to rate the driver after each trip. Any driver who fails to maintain a required average rating will receive a series of warnings and may have their relationship with Uber terminated. ● Uber restricts communications between passenger and driver to the minimum necessary 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. This judgment affects all of Uber’s drivers who work in the same way. The company has since given all 70,000 of its UK drivers a guaranteed minimum wage, holiday pay, and pensions. This is in addition to the free insurance to cover sickness, injury, maternity and paternity payments already in place. Kubilius v Kent Foods Ltd An ET has held that an employer fairly dismissed their employee who refused to wear a facemask on a client’s site. The claimant in this case was employed by the respondent, an organisation which transports food products from supplier to customer, as a class 1 driver. In May 2020, the claimant was required to visit a client’s site and on the morning of his visit, the respondent received an email from the client notifying that the claimant had refused to wear a facemask and was therefore banned from their site for noncompliance with their health and safety rules. After being notified that he had been
banned from the client’s site, the claimant denied wrongdoing. He stated that he had stayed in his vehicle the entire time he was at the site and was therefore not required to keep his mask on; also citing government guidance at the time which stated that facemasks were “optional and not required by law, including in the workplace”. The issue was investigated by the respondent, and an interview with the claimant conducted as part of this. It was later found that the claimant had breached the terms in the employee handbook which states that employees must be “courteous and pleasant to clients/ suppliers at all times” and that “rudeness or off-hand treatment of clients/suppliers will not be tolerated”. In addition to this clause, the respondent also had a health and safety clause in the handbook which provides that employees should take all reasonable steps to ensure that their own health and safety is safeguarded, as well as that of any persons who may be affected by their actions at work. The driver’s handbook also stated that clients’ PPE (personal protection equipment) requirements must be followed. A disciplinary hearing followed, and in June 2020 the claimant was dismissed. He later brought a claim of unfair dismissal to the ET. Citing the organisation’s employee handbook, which sets out rules on their employee’s expected behaviour, and the respondent’s genuine belief that the claimant had been guilty of misconduct after a thorough investigation into the issue, the ET held that the dismissal had been fair. The client’s unwillingness to cooperate with the requirement to wear a mask, despite attempts from the respondent to rebuild the relationship between the client and the claimant, also worked in the organisation’s favour. The ET further affirmed their decision by noting that it was clear that keeping a good relationship with their clients is of priority to the success of the respondent’s business and the claimant’s unwillingness to accept fault casted doubt on his future conduct. In all, the ET noted that although a different organisation in the same situation may have chosen to issue the claimant with a warning, the respondent’s decision to issue a dismissal was still a reasonable response. n
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| Professional in Payroll, Pensions and Reward |
Issue 70 | May 2021
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