Worker status cases: bright lines or broken glass?

Briefing

Following landmark decisions such as Uber (in which the Supreme Court found in 2021 that Uber drivers were workers), it is often not clear to what extent cases on similar facts may be litigated in future. First, there are often residual issues which the landmark judgment does not address or resolve. Secondly, it may be that the passage of time shifts the dial in terms of how a business model operates; policy considerations may also have changed. Lastly, there is always scope for cases to be distinguished on their facts.

Last month, Bolt drivers succeeded in establishing worker status in an Employment Tribunal. While acknowledging that the case being argued "was not Uber", the judge also cautioned against "broken glass" litigation. The suggestion here is that litigation subsequent to Uber is like picking through the wreckage of past arguments. But is this not rather reductive and does it properly reflect the scope for divergence?

Bolt decision key findings (November 2024)

As a result of a recent Employment Tribunal decision, Bolt drivers are now classified as workers rather than self-employed contractors. This classification entitles them to benefits such as holiday pay and national minimum wage. The decision could reportedly impact over 100,000 drivers and cost Bolt over £240 million.

As per the Supreme Court's decision in Uber (2021), the foundation of the Bolt judgment rests on the significant level of control that Bolt has over its drivers. The judge pointed to several factors indicating control:

Onboarding process: drivers had to apply using an application form, attend 'activation sessions', complete training, and pass vehicle and identity checks. It was specifically noted in the judgement that, "Personal identity documents produced to Bolt and verified on recruitment/’onboarding’ are checked and re-checked at frequent intervals.".
Operational control: drivers were required to follow routes suggested by Bolt and were restricted to certain licensed areas. On the face of it, drivers were free to complete journeys by a route of their choice, but "this freedom is not quite what it first appears to be… In practice, Bolt does not respect the freedom of choice in respect of route which its standard documentation proclaims".
Punitive measures: Bolt could block drivers from operating within the app temporarily or permanently based on various performance metrics. Notably, the temporary block required no explanation (paragraph 101).
Uber and Bolt have similar findings regarding control. Like Bolt, Uber set the fare, monitored driver activity through the app, used customer ratings for performance management, and imposed penalties for declined trips. It should be noted that some of these factors were derived from regulatory obligations, rather than being voluntary policies of Bolt. However, the judge found this did not alter the analysis.

Other cases after Uber

It should be remembered that not all platforms operate in the same way, and not all cases are about control. A different outcome was reached in the following cases:

Gett Taxi (October 2024): it was found that drivers are self-employed. The Employment Appeal Tribunal highlighted distinct factors: they are "black cab" drivers carrying out their own trade, not exclusively through the app, which is an additional conduit for their work. Gett drivers were not penalised for rejecting rides, did not follow company-set fares but adhered to Transport for London regulations on pricing, and could freely communicate with passengers.
Deliveroo (November 2024): here, it was found that riders are not workers due to a genuine substitution clause, allowing them to use substitutes. An obligation for personal service is a crucial test of worker status. The Deliveroo ruling highlights the importance of genuine substitution clauses which are actually used by the driver.

The issue of multi-apping

Multi-apping is where drivers simultaneously log into multiple apps to optimise their chances of securing work. Since the Uber decision, the practice of multi-apping has grown considerably. Uber did not decide the status of working time when a worker is multi-apping but comments in the case suggested such time could be classified as working time.

In Bolt, the employment judge rejected the argument that multi-apping pointed away from control and subordination. If anything, having to work for many apps in order to make a living (particularly in a cost of living crisis) reinforces a lack of autonomy. But with regard to the working time point, the Bolt judgement echoed what was said in Uber, that multi-apping might well be working time.

The relevant passage is not entirely clear, but it seems to say that, in theory, a worker could be entitled to payment from each of the apps while available. It was envisaged that, once a job was taken, a worker was likely only to be working for one app so only entitled to one payment. Ironically, that would make not working but being available more lucrative than actually working. This cannot be right.

A few points to note:

Because the point was not decided in Uber, there remains ambiguity about whether time spent logged into multiple apps concurrently constitutes 'working time' for each app independently.
Practical challenges remain about how to remunerate workers who are multi-apping, both during 'availability' time and during 'on the job' time.
Employers need to develop policies on multi-apping which enable them to monitor compliance with WTR and NMW effectively. This is difficult in a legal vacuum. Further, an outright ban on multi-apping is unlikely to work for zero hours workers (due to the ban on exclusivity clauses).

Harmonisation or divergence with EU frameworks

The recently published Platform Workers Directive (PWD) aims to standardise protections for platform workers across the EU by:

Establishing a rebuttable presumption of employment status, requiring platforms to prove workers are genuinely self-employed.
Ensuring minimum protections such as fair wages, health benefits, paid leave, and rights to collective bargaining.
Mandating transparency in algorithmic management, including disclosure on how algorithms influence work conditions and decisions.

The PWD will give rise to case law on when platform workers in Member States are employees. It remains to be seen to what extent this will contribute to the development of UK case law on how to determine employment status for platform workers.

Conclusion

Since Uber, contrasting outcomes for other platforms like Gett Taxi and Deliveroo, highlight the nuanced factors influencing worker status determinations. Additionally, the issue of multi-apping presents practical challenges in defining working time and ensuring compliance with National Minimum Wage regulations. Unlike the Uber case, where market dominance at the time limited considerations to a single app context, today's market landscape has significantly evolved with increased competition. This evolution necessitates revisiting and clarifying in case law how working time is calculated in multi-apping scenarios.