Uber in last-ditch court appeal against UK ruling that its drivers are staff

Landmark case over rights in Britain's workplaces could have ramifications for millions earning a living in the gig economy

Uber is launching a final appeal at the UK's Supreme Court over its business model. (AP Photo/Nam Y. Huh, File)

Uber has been accused of “having its cake and eating it” during its appeal at the UK’s top court to show that its drivers are not formal employees.

In a last-ditch attempt to overturn a previous ruling that its drivers are staff, Uber told Britain’s Supreme Court on Tuesday that the UK's National Minimum Wage Act did not extend to its drivers and there was "no warrant" to adopt it in this case.

However, lawyers seeking to uphold the previous ruling said their clients deserved “statutory protection”.

The landmark case over workplace rights will have a knock-on effect for millions of people earning a living in the gig economy.

Two former UK Uber drivers first won their employment tribunal against the company in 2016 to prove they were employees and entitled to benefits, including earning the minimum wage and holiday pay.

Despite two further appeals by Uber, Britain's Employment Appeal Tribunal and the Court of Appeal upheld the decision.

On behalf of Uber, Dinah Rose QC told the court that the drivers have contracts with their passengers and not with Uber.

“There is no obligation on the driver ever to switch on the app and no obligation to accept an individual’s request,” she said.

“There is never any obligation for anyone signed up to the app to ever use it. The position is Uber is not paying the driver for any service, the passengers are paying the driver, Uber is remitting that to the driver.

“There was a direct contract between the driver and the customer.

“This appeal needs to be allowed and the decision needs to be reversed.”

Earlier, Ms Rose had told the court it was an issue for the UK Parliament to introduce legislation to cover drivers.

"Parliament could introduce legislation to extend it further to cover Uber. Legislation could be introduced in the future to cover gig workers, but it is not a legislative issue at the moment,” she added.

"It is not a matter for us, it is a matter for Parliament.”

The case is Uber’s last roll of the dice to defend its business model in Britain as the Supreme Court's decision will be final and cannot be appealed.

The previous ruling said that Uber drivers are workers under the law rather than self-employed contractors and are entitled to rights and protections in the UK.

But owing to the appeal process, Uber drivers are still currently treated as being self-employed, meaning they are legally entitled to only minimal protections.

Jason Galbraith Marten QC, representing two of the appellants, urged the court to dismiss Uber’s appeal.

“The Employment Tribunal determined as a fact that the claimants work for Uber,” he said.

“The tribunal found Uber does impose numerous conditions, instructs its drivers how to do their work and controls them in how to do their duties. The tribunal also found that whilst on duty the drivers are contractually bound to accept a reasonable number of trip requests.

“This litigation is an attempt by Uber to have their cake and eat it.

“What my clients did was earn a living driving minicabs for Uber, it was their job. All the tribunal found in essence is that they are deserving of that statutory protection.”

Uber says its practices have been used for decades by private-hire vehicles known as minicabs, which cannot be hailed in the street like traditional taxis, and that drivers earn on average more than the minimum wage alongside other benefits.

The Supreme Court will continuing hearing the case on Wednesday.

A judgment is not expected until at least October.

If Uber loses, a further tribunal hearing may be needed to decide how the ruling is applied in practice.

Other firms in the gig economy use a similar business model, in which people work for one or more companies without fixed contracts.

Uber is also facing similar cases elsewhere.