Read our reports on two Supreme Court Employment Appeals

3rd August 2020

Gareth Graham reports on two important appeals which took place this month. Both were live-streamed from the Supreme Court, and the judgments will be promulgated later in the year.

The first, Uber v Aslam and others, concerns the well-known private hire vehicle booking service. Journeys are booked through a smartphone app, which connects passengers to drivers. The drivers contend that, during the periods covered by their claims, they were “workers” for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998. As such, the drivers claim that they were entitled to the minimum wage, paid leave and other legal protections. Uber argue that the drivers were independent, third party contractors and not “workers”. Following a preliminary hearing, the Employment Tribunal found that the drivers were “workers” and that they were “working” whenever they (a) had the app switched on; (b) were within the territory in which they were authorised to work; and (c) were able and willing to accept assignments. These findings were upheld by the Employment Appeal Tribunal and the Court of Appeal. The two issues for the Supreme Court are: (1) whether the drivers were “workers” providing personal services to Uber; and, (2) if the drivers were “workers”, what periods constituted their “working time”.

The second, Asda Stores Ltd v Brierly and others, concerns equal pay claims brought by supermarket employees of Asda, nearly all women. They are claiming equal pay with comparators employed in the distribution depots, jobs done overwhelmingly by men. A preliminary hearing took place in the Employment Tribunal to determine whether the employees are entitled to compare themselves for equal pay purposes with employees working in Asda’s distribution operations. The Employment Tribunal allowed the claims to proceed (with the Employment Appeal Tribunal and the Court of Appeal dismissing the subsequent appeals by Asda).  The issue is whether employees in Asda’s retail operations are entitled to compare themselves with employees in the distribution centres so that they can rely on section 79(4)(c) Equality Act 2020 or, as regards the period covered by the Equal Pay Act 1970, so that they are in the “same employment” as defined in section 1(6) of the 1970 Act.