The Employment Appeal Tribunal (EAT) has today upheld the ET decision that when the Uber drivers were in the work area, available for work and with Uber app switched on, they were workers with rights to national minimum wage, sick pay and holiday pay.

Today’s decision is not a surprise, given the employment tribunal findings that the actual working arrangements were inconsistent with the written contracts and inconsistent with the drivers being in business on their own account. It is also in keeping with the general trend of recent cases on employment status and government positioning.

Uber’s challenge to the ET finding that it was not acting as agent between the drivers and passengers also failed. The EAT found that during gaps when the drivers did not have the app switched on, they were not workers for Uber but that this was not “fatal to their status as ‘workers’ when they did”.

Uber also argued that the arrangements suggesting worker status were only in place because the regulatory framework for private hire licensing required it. The EAT rejected this because the framework did not require Uber to carry out the “interview and induction process (onboarding) it chose to operate”.

Uber’s challenge to the ET finding that it was not acting as agent between the drivers and passengers also failed.

Uber is expected to appeal again to the Court of Appeal or Supreme Court because of the scale of their prospective liability to their 40,000 plus drivers.

Contrary to Uber’s public statement statements, worker status is flexible for the business engaging the services because there is no ongoing obligation to provide work. Today’s decision does not extend full employee status, which would confer entitlement to redundancy payments or to claim unfair dismissal to those with 2 years’ continuous employment. That is likely to be the next frontier for test cases.