Today, the Employment Appeal Tribunal (EAT) handed down its decision on the worker rights of two Uber drivers. A previous Employment Tribunal ruled that Uber drivers should be considered workers, with rights to the minimum wage and holiday and sick pay - as well as other benefits. The EAT today upheld the original decision of the ET.

Susannah Kintish, an Employment Partner at Mishcon de Reya, is representing Pimlico Plumbers in its long running worker rights case - currently the highest authority on these issue. Susannah commented:

"Uber has today lost its appeal against the Employment Tribunal's decision that its drivers are 'workers' for the purposes of determining their employment rights. Uber had sought to argue that the Tribunal was wrong in its original finding, and that Uber was acting as an agent for the drivers, finding them work. However, the Employment Appeal Tribunal (EAT) confirmed that the Tribunal was correct in concluding, given the specific facts of the case, that the drivers in reality worked for Uber and not the other way round. Regulations dictated that Uber must put in place a certain amount of control over its workers – the fact that these controls were obligatory has not helped Uber's case: the EAT held that it is the mere existence of the controls that matter, not the reason giving rise to them.

"One difficult issue had been whether the drivers were working from the time that they turned on the app and were 'in territory' (in other words, they were in the designated area in which Uber had agreed they could work), or only when they accepted a customer's request for a trip. The EAT decided that the Tribunal had been entitled to conclude that, given the London market, the drivers were not really able to hold themselves out as available to any other taxi operator, and therefore were working at Uber's disposal as soon as they were in territory and with the app switched on. However, this is very fact specific. If Uber could show that drivers were able to hold themselves out as available to other operators, then the analysis would be different and the time spent working for Uber could be limited to when they had accepted a trip.

"We would expect that Uber will appeal this decision, and seek to leapfrog the Court of Appeal and proceed directly to the Supreme Court. It's unlikely that the case will be joined with Pimlico Plumbers – which has its own long-running worker rights case listed to be heard by the Supreme Court in February 2018 - but another decision, Citysprint, is due later this month and it is possible that these two could proceed together to the Supreme Court sometime next year. It is also possible, however, that the Government may step in and make the decisions less relevant. If the recommendations of the Matthew Taylor report were to be implemented (such as redefining workers as 'dependent contractors'), this could change the landscape relating to worker status in the gig economy."