In Uber and others v Aslam and others, the Supreme Court upheld an employment tribunal decision that Uber drivers are workers within the meaning of UK employment legislation. This entitled the workers to the protection of minimum wage, holiday and other workers’ (but not employee) rights. The decision was based on the degree of subordination and control to which they were subjected. The court also confirmed that the drivers’ working time included all the time they were logged in to the Uber app, within the territory in which they are licensed to operate, indicating that they were prepared to accept trips.
The similarly long-running case of Royal Mencap Society v Tomlinson-Blake and another case was decided by the Supreme Court. The court held that care workers who are required to sleep at their workplace, to be available to be called on during the night, were not entitled to the national minimum wage (NMW) for the entirety of their shift. During this ‘sleep-in’ time, the workers were not working but merely ‘available for work’. The court held therefore that they were entitled to the NMW only for hours during which they were awake for the purpose of working.
In Smith v Pimlico Plumbers Ltd, the EAT held that a worker is not entitled to carry over a right to payment for annual leave in circumstances where the worker has been permitted to take annual leave but has not been paid for it. Although the European Court of Justice’s ruling in King v Sash Window Workshop Ltd established that a worker is entitled to carry over, without limit, any annual leave untaken because the employer refuses to remunerate it, that judgment did not apply to leave that was in fact taken. Any claim for failure to make payment for leave taken had to be brought within three months of the date of the last and most recent failure to pay holiday pay.
In Asda Stores Ltd v Brierley and others, the Supreme Court has held that Asda’s (mainly female) supermarket employees can compare themselves with employees at distribution depots (who are mainly male) for the purpose of equal pay claims. If there are no comparators at the claimants’ establishment and it is not clear what terms the distribution employees would have had, the court or tribunal must consider whether the comparators would have been employed on broadly similar terms to those they are currently on, if employed on the same site as the claimants. The employment tribunal originally found that the distribution employees would have been employed on substantially the same terms, being a better hourly rate, than the supermarket employees. The Supreme Court has held that there was no misdirection of law on this matter and the employment tribunal’s findings should stand. The supermarket workers have not won the battle, though – they still need to prove they performed work of equal value and Asda will be able to rely on a defence such as the difference in pay being due to a genuine material factor which was not on the grounds of sex.
