Following the decision of the Supreme Court that Uber drivers are workers (weekly LELR 717), the Court of Appeal has held in Addison Lee Ltd v Lange and ors that Addison Lee drivers are also workers, based on the key finding that they fall within the statutory definition of a worker.
Three Addison Lee drivers brought claims against the company arguing that they were “limb (b) workers” and therefore entitled to holiday pay under the Working Time Regulations 1998 and the national minimum wage under the National Minimum Wage Act 1998.
The employer argued that there was no contractual obligation on the drivers to provide their services at any time, nor was there any obligation on Addison Lee to provide them with work (called mutuality of obligations).
Section 230(3)(b) of the Employment Rights Act (ERA) states that a worker is an individual who has entered into either:
(a) a contract of employment; or
(b) “any other contract … whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual". This is known as the “limb (b) test.”
Decisions of tribunal and EAT
The tribunal decided that the drivers were "limb (b) workers" for two main reasons. First, although the contracts stated that they did not have to undertake any work, the tribunal found that as soon as they logged on to the app, the reality was that they had to accept the jobs which they were assigned to. A sanction was imposed if they declined.
Second, each time a driver logged on, the tribunal found that they were undertaking to accept the driving jobs allocated to them and to perform those services personally for the other party.
“The test is an objective one” according to the tribunal “and we need to ask what a reasonable observer, in possession of the material facts, would say the parties had agreed. Ignoring the period between '”log ons”, the drivers, when they logged on, were undertaking to accept the driving jobs allocated to them. They were undertaking to perform driving services personally. No other conclusion is possible."
The EAT agreed (weekly LELR 603).
Decision of Court of Appeal
Following the decision of the Supreme Court in Uber v Aslam (weekly LELR 717), the Court of Appeal confirmed that Addison Lee minicab drivers were workers, not independent contractors.
The Court rejected the employer’s argument that the position of the drivers was different to the Uber drivers as they had a written contract, whereas the Uber drivers did not. This stated that there was no obligation to provide services to Addison. In particular, the Supreme Court in Uber had endorsed the principle in Autoclenz v Belcher (LELR 229) that where the terms of the contract do not represent the reality of the situation, those terms should be disregarded.
What is key is whether the drivers fall within the statutory definition of a worker. In the present case, the tribunal found that clause 5.2 of the driver contract did not reflect reality and that the drivers, when they were logged on, were undertaking to accept the trips or jobs offered to them.
In upholding the decisions of the tribunal and the EAT, the Court of Appeal concluded that: “There is no arguable error in the finding of the [tribunal], upheld by the EAT, that in the present case the claimants were limb (b) workers.”
The Court also upheld the finding that the time when the drivers were logged on amounted to working time under the Working Time Regulations 1998 since they were at the employer’s disposal.
The Court, in this case, was considering an application whether to allow a further appeal to the Supreme Court. However, following the judgment in Uber, it considered that there was no reasonable prospect of success in overturning the finding that the Addison Lee drivers were workers.