Uber seek High Court declaration to confirm London business model is not in breach of regulations

Ride-hailing firm Uber are seeking declaratory relief from the High Court to confirm that its business model is compliant with Transport for London (TfL) regulations.

In February this year the Supreme Court ruled against Uber to confirm that drivers on the platform are workers entitled to statutory protection under employment law. In comments written by Lord Leggatt as part of the judgment, the Supreme Court also raised fresh questions on Uber’s business model and whether it was compliant with transport regulation.

The capital’s regulators TfL has now publicised Uber’s application for relief, which industry representatives says places 100,000 licensed London private hire drivers at risk of ‘terrible exploitation’.

Yaseen Aslam and James Farrar, ADCU President and General Secretary, released a statement saying: “This is a brazen attempt by Uber to undermine our Supreme Court victory and weaken Transport for London’s powers to protect workers from terrible exploitation.

“TfL and the Mayor’s decision to go along with this legal caper amounts to a terrible betrayal of 100,000 Londoners working as licensed drivers under brutal working conditions. Instead of showing political leadership and standing up for precarious workers the Mayor is sweeping us and the problem under the carpet.”

Graham Robinson, TfL’s General Manager Taxi and Private Hire, announced the legal action yesterday in a notice to the taxi and private hire industry. The notice said: “Uber London Limited (ULL) has issued proceedings in the High Court seeking a declaration as to whether the Private Hire Vehicles (London) Act 1998 (the 1998 Act) requires an operator accepting a booking from a passenger to enter into a contract with that passenger to provide the journey.

“ULL has named TfL as one of the parties in these proceedings as the Supreme Court commentary primarily focussed on the 1998 Act, which TfL regulates.

“The United Trade Action Group (UTAG) has previously issued separate proceedings seeking clarity on a similar point of law and is also named as one of the parties in ULL’s claim.

“The purpose of this Notice is to draw these proceedings to the attention of interested parties, including licensed private hire operators and licensed drivers, and anyone who wishes to join in these proceedings.

“As the claimant, ULL has requested that the Court consider this issue urgently and suggests that any parties who wish to be joined in these proceedings should apply to the Court by no later than 24 May 2021.”

United Trade Action Group (UTAG) responded to the news on social media, saying: “Uber are seeking a Declaration from the High Court that their business model is not in breach of the 98 Act despite the recent Supreme Court ruling.

“They have dragged UTAG into their fight and we will defend our position robustly.”

Trevor Merralls, UTAG Director and UCG General Secretary, commented on social media: “Let’s call it what it is, if Uber are successful it means Private Hire work exactly the same as us without putting in the effort of completing the KoL (Knowledge of London).

“The 2 tier will not be viable. They can ply-for-hire via an app with impunity. It’s UTAG representing the black cab trade v Private Hire.”

In a recent interview with TaxiPoint, Uber’s Regional General Manager for Northern and Eastern Europe was asked whether the Supreme Court ruling had raised debate over who takes the customer booking first.

Jamie Heywood replied: “Uber London Limited accepts the booking as the registered private hire operator for London, in compliance with the regulatory regime. This remains unchanged.”

In February, following the Court’s ruling which handed Uber drivers basic workers’ rights, the Licensed Taxi Drivers’ Association (LTDA) described a section of the judgment which questions how bookings are taken on the Uber platform as the ‘biggest revelation’.

Steve McNamara, LTDA General Secretary, said to members at the time: “The biggest revelation is hidden deep inside the Supreme Court Judgment handed down by Lord Leggat, but agreed with unanimously by the other five members of the Supreme Court.

“In the ruling, the Court questions the legality of how Uber accepts bookings and concludes that ‘the driver, as well as Uber London, accepts the booking’ This is the exact point our lawyers made to TfL in 2017 during the first Uber licensing appeal!

“The same 'unlawful' booking acceptance procedure is used by dozens of private hire car operators across London, and our lawyers have today written to TfL requesting an urgent review of how private hire operators accept bookings.”

In a letter submitted to TfL’s Legal team, solicitors acting on behalf of the LTDA, state: “In view of the content of the Supreme Court judgment we submit that TfL should urgently reconsider whether London PHV operators who purport to accept bookings as agent for unlicensed PHV drivers are trading lawfully.

“It is not just Uber which does this: we are aware that similar stances are taken by Bolt, FreeNow and Ola. Addison Lee operators the agency model for non-business customers.

“We respectfully suggest that when in 2018 TfL accepted that a mere software change conferred legality on Uber’s agency model, it lost sight of the clear legislative intent that a person who accepts private hire bookings in London has to be licensed to do so. The legislation was intended, in part, to preserve the distinction between hackney carriages (which may ply for hire) and minicabs (which had to be pre-booked through the operator). TfL‘s approval of Uber’s revised operating model permitted an app-based PHV operator to continue to subvert that intent by the mere tweaking of IT systems. TfL did not at the time address the fundamental issues we raised in March 2017: as the judgement in Uber V Aslam confirms, those issues have not gone away.”

Just last month the taxi industry also won the right to a Judicial Review which could effectively open up the long standing trade argument over the definition of plying for hire.

Taxi representatives United Trade Action Group (UTAG) were granted the review by Senior High Court Judge, Mrs Justice Lang DBE in April. The review will focus on Transport for London’s (TfL) decision to grant Transopco an operator's licence on the FREENOW / Kapten booking platform.

Speaking on the ‘Black Cab Show’ podcast, UTAG Director Trevor Merralls, told the host that the case will focus heavily on how private hire vehicles (PHV) cannot be pre-booked on the app, but licensed taxis can. On the same FREE NOW app, PHV’s can however be ordered via an ‘immediate pre-booking’, which has drawn discussion over what is an immediate hail and what is a pre-booked journey.