Claimant Takes Further Legal Action Against Uber Following 2021 Supreme Court Decision

Mr Farrar v Uber

The ongoing legal saga involving Uber over work pay and conditions has taken a further twist recently with one of the Claimants in the original case now disputing how the transportation conglomerate calculates drivers’ pay.

In 2021, the Supreme Court handed down its judgement in the case of Uber BV and others v Aslam and others, in which it upheld an Employment Tribunal’s decision that Uber drivers are ‘workers’ for the purpose of rights under the Employment Rights Act 1996, Working Time Regulations 1998 and National Minimum Wage Act 1998.

The Supreme Court unanimously ruled that drivers should be deemed to be “working” once they log into the Uber app within their licensed territory and ready and able to accept trips.

Following the decision, Uber announced that all their 70,000 UK drivers would receive the national minimum wage, holiday pay, and pensions. However, it maintained that it wasn’t viable for drivers to be paid from when they are logged into the app. This is because drivers can reject requests and can also be logged into and take requests via other ride-hailing apps.

It is worth noting that in the original proceedings, no evidence in relation to the existence of other ride-hailing apps was put forward, so this was not considered within the Supreme Court judgement.

The latest twist, in this case, has also drawn attention to the Supreme Court’s decision in Harpur v Brazel concerning how employers correctly calculate holiday pay for employees who work irregular hours.

What are the latest developments in this case?

The Claimant who has brought the latest claim against Uber is James Farrar, a former Uber driver and now General Secretary of the App Drivers and Couriers Union. As mentioned above, he was one of the original claimants in the Supreme Court case but is said to have declined Ubers’ settlement offer following the 2021 judgment.

Mr Farrar is seeking a declaration from the Employment Tribunal that clarifies exactly how Uber is allowed to define and calculate a minimum wage and paid holiday for its drivers. According to Mr Farrar, despite the Supreme Court’s ruling, Uber has continued to only pay its drivers for the period that they pick up a passenger and then drop them off.

It has also been claimed that Uber calculates holiday pay on a weekly basis, whereby it multiplies a driver’s earnings by 12.07% – an incorrect method of calculating holiday pay according to the decision in Harpur v Brazel.

It is worth noting, however, that there is currently a consultation open in respect of whether the 12.07% multiplier should be reinstated. The Government has said that it acknowledges that “rolling up” holiday pay is a practice widely used in the gig economy as it is a simple method of calculating holiday pay for those who work irregular hours.

In response to the claim being brought by Mr Farrar, Uber’s General Manager for the UK, Andrew Brem, told The Standard:

“We’ll see in this employment tribunal what a judge thinks. We believe what we’ve done is totally appropriate, complying with the law and fair, basically.,”

In the latest legal proceedings, it is anticipated that Uber will put forward evidence of drivers being logged into other ride-hailing apps and whether they are deemed to be working simultaneously for more than one employer.

Comment

Employment status and calculation of holiday pay continue to be complicated areas of law for both employers and workers to understand. The consequences for employers of getting this wrong can be expensive to correct and this is why it is really important for those employers who operate unusual working patterns to take advice on what they are obliged to pay their workers and for what periods of time.

How can we help?Mr Farrar v Uber

Laura Kearsley is a Partner in our expert Employment Law team.

If you would like any advice in relation to the subjects discussed in this article, please contact Laura or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.

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