Following in the wake of the Uber drivers' prolific fight for worker status a few years ago, in the case of Bandi and Others v Bolt Operations OU and another, an Employment Tribunal has recently upheld a claim brought by around 10,000 Bolt drivers, ruling that the drivers are legally considered to hold “worker” status.
Background
Bolt, an app-based ride service (similar to Uber) has operated in the UK since 2019. The company classified the drivers as self-employed contractors. This excluded the drivers from receiving many of the benefits and protections to which “workers” or “employees” are entitled from their employers, such as holiday pay or the National Minimum/Living Wage (NMW). The drivers sought to be recognised as “workers” and accordingly claimed Bolt had failed to pay them the NMW and had failed to afford them paid holiday.
How to determine “worker” versus “self-employed” status
A Tribunal will consider a number of factors when determining an individual’s correct status. In this case, the Tribunal found multiple examples of how the working arrangement between Bolt and the drivers pointed to “worker” status.
One of the main factors was the degree of control Bolt exercised over the drivers. For example, Bolt has a policy of penalising drivers for cancelling rides. Nominally, drivers had the right to cancel a ride after they had accepted it from a customer; however, if they cancelled too many rides, Bolt would suspend them from using the app through which rides were allocated. Although Bolt eventually removed this policy, the Tribunal found that they had not effectively communicated this change of policy to many of the drivers. Such control is inconsistent with the notion of self-employment, where individuals typically have more autonomy over their work.
Another key factor that was considered was the driver's ability to provide a substitute. Personal performance is an essential characteristic of any contract of employment or worker’s contract. Therefore, the genuine ability to provide a substitute may negate genuine self-employed status. Bolt tried to argue its “Bolt Link” service, which allowed a driver who owned a number of vehicles to essentially operate their own fleet of drivers using the Bolt app technology, was evidence of self-employed status. The Tribunal, however, found that, in reality, the Bolt Link service did not facilitate the delegation of rides from one driver to another driver in their fleet (i.e. provide a substitute). The declined ride would be reassigned by Bolt centrally to whichever general driver was nearest.
What is “working time”?
Having come to the conclusion that the Bolt drivers were “workers”, the Tribunal had to determine what was “working time” for the purpose of being paid NMW. Here, the Tribunal adopted the analysis in the earlier landmark Uber BV v Aslam case and determined that when a driver was “(a) in the territory for which he is licensed, (b) has the App switched on and (c) is ready and able to accept trips” this will be counted as working time under the Working Time Regulations 1998.
What does this mean for the gig economy?
The employment practices of the gig economy have long been a topic of hot debate. The Bolt case covers much of the same ground walked first by Uber, each coming to similar findings and the victory for the drivers in this case could be worth up to £15,000 per driver i.e. more than £200m altogether (the exact compensation will be decided in a further hearing in 2025). Deliveroo was also similarly under the microscope in recent years, but managed to persuade the Tribunal that their riders were self-employed.Regardless, Deliveroo was put to significant time and cost to defend the claim. These cases show that many gig economy workers are alive to their potential rights and willing to pursue them. Furthermore, Tribunals seem to be sending employers a strong message about the importance of classifying their workforce correctly.
Azrah Ahmed