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On 10 November 2017, the Employment Appeal Tribunal (“EAT”) ruled on the appeal brought by Uber BB, Uber London Ltd and Uber Britannia Ltd against the October 2016 Judgment of the London Central Employment Tribunal (“ET”), which recognized Uber drivers as workers (see post “Los conductores de Uber ¿trabajan por cuenta ajena?”).

The premise on which to analyze the decision is the three-pronged category of legal figures under English employment law to classify individuals’ provision of services:

  • Employee: this is equivalent to trabajador por cuenta ajena in Spanish law, to which all employment regulations are applicable, e.g., working time, severance and vacation.
  • Self-employed or contractor: this is equivalent to trabajador autónomo or trabajador por cuenta propia, a person who has a commercial rather than a labor relationship and works without being subject to the concepts of engagement or dependence.
  • Worker: this figure does not exist in Spain, and it refers to persons who work with an (a) an employment contract or (b) any other kind of agreement, including a verbal one, under which they agree to provide personal and tailored services, even if intermittently across time. Although workers benefit from the minimum salary, paid vacation, limits on working time, and more, they do not have access to other rights such as severance or a notice period for termination.
  • Based on the above, the EAT dismissed UBER’s appeal and, after extensively scrutinizing the first instance judgment, fully upheld it to declare that drivers are workers based on the principle of the irrelevance of nomen iuris, supported by different examples of engagement and dependence proven at first instance: the monitoring of the drivers, the imposition of rules or of a maximum price per service, the consequences of breaching any of those, and Uber’s assumption of some of the drivers expenses (cleaning); but all these put into the context of the drivers’ freedom to provide services when they want, subject to no prior time commitment.

In line with the first instance judgment, the EAT defines working time as that in which the driver: (i) is in the territory agreed with Uber, (ii) logged in to the app account, and (iii) ready and willing to accept trips via the app.

Beyond the nature of the relationship between the platform and the service provider in the on-demand economy, the first and second instance judgements prove what we believe is the most difficult element to fit into traditional employment regulations: working time.

Unlike the traditional employment relationship, most on-demand platform service providers choose their work schedule, time off, working hours and even vacation.

Giving the service provider complete (or a high degree of) autonomy over a basic element of the labor relationship as is committed working time undermines, at least partially, the dependence that must govern the provision of services in an employment relationship from a continental perspective.

Therefore, this type of service provision does not completely fit into traditional figures and reveals certain contradictions. Meanwhile, we await regulatory updates in this area from European and domestic lawmakers.

Authors: Rubén Agote and José María Martínez

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Socio

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Orientación a empresas nacionales y multinacionales en temas de derecho deportivo y del trabajo, proporcionando ayuda a clientes en el análisis económico de la perspectiva jurídica de alternativas legales factibles. Asesoramiento a empresas en el ámbito de políticas corporativas, negociaciones colectivas y reestructuraciones, entre otras cuestiones. Representación de empresas en litigios judiciales, arbitrajes y mediaciones en relación con todo tipo de controversias de derecho deportivo y del trabajo. Amplia experiencia en asesoramiento de la industria de los deportes y del entretenimiento.

ruben.agote@cuatrecasas.com

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