Being characterized as an employee rather than an independent contractor establishes certain obligations of the employer. Most notably, employment standards legislation would govern an employment relation, meaning that, as an employee in Canada, entitlements such as minimum wage, Canada Pension Plan and Employment Insurance contributions, and so forth would be owed. In the case of Uber, the Ontario Superior Court is still yet to rule on the status of Uber in relation to its drivers. There has been developments in the United Kingdom (UK), however, with Uber being characterized as an employer by the UK Employment Tribunal.
In the case, the UK Employment Tribunal analyzed many facets of the relationship between Uber and its drivers, concluding that many aspects of an employment relation are present. Specifically, Uber maintains a level of control that is characteristic of an employer. This includes Uber’s power to unilaterally set the fare, the terms and conditions of the contract (ie. the conditions of work once the application ‘Uber’ is turned on), vehicle requirements, and limits on driver cancelations. Further, Uber’s use of its driver rating system to manage performance and impose discipline was further evidence of an employment relation and indicator of the amount of control Uber maintains over its drivers. Lastly, Uber also bared the risk of loss, which is another indicator of Uber being an employer of the drivers. Therefore, the 2 drivers in this case were owed entitlements such as minimum wage and paid leave by Uber under applicable UK legislation.
The case will be appealed as it only dealt with 2 Uber drivers, while Uber feels that many of the drivers that use Uber want to maintain a independent relation. Nonetheless, there are similarities between the UK Employment Tribunal’s analysis of whether an employment relationship exists and the tests that Canadian courts use in analyzing independent contractor /employment relationships. Most notably, the degree of control which guided the UK Employment tribunal’s conclusion is also a main factor the Ontario Superior Court will consider in its analysis. In this light, it will be interesting to compare the ruling of the Ontario Superior Court to that of the UK Employment Tribunal’s discussed here.