2/ Lord Leggatt is concerned about the provisions against contracting out. @DinahRoseQC makes clear those provisions (s.49 NMWA) don't impact on the interpretation of whether an arrangement falls within limb (b), but only where the contract does fall within that relationship.
3/ The starting point must be the contract, with parties free to enter into an agreement outside of limb (b). There's no warrant for adopting a broad construction of limb (b) or a special approach to interpretation of contract (the batter between CA majority & minority).
4/ 1st authority referred to is Bankway - doing the groundwork on the key battleground for how the Court should construe its judgment in Autoclenz (as Bankway was key to Lord Clarke's judgment). Emphasis on repugnance of the contractual drafting in that case.
5/ This is really the nub of Underhill LJ's dissent - freedom to contract however the parties choose; only go to Autoclenz if the terms of contract are repugnant to the reality of the relationship.
6/ @DinahRoseQC turns next to s.34 NMWA - noting that that extended the worker definition to catch a vulnerable group of workers. 
7/ Suggests that this shows a legislative choice to extend the scope of limb (b) to cover a particular situation. Parliament could have chosen to extend limb (b) to the Uber situation, but hasn't done so to date.
8/ This is followed up with showing how Parliament made similar definitional extensions under the ERA in s.43K. Laying the groundwork for a narrowly textual construction of s.230(3)(b) and leaving broadening to Parliament.
9/ Whether or not she succeeds, @DinahRoseQC is giving an advocacy object lesson in structuring submissions. Take the tribunal (or appeal court) down a path and try to lock each door behind you, so that to find against you they have to go to the effort of unlocking each door.
10/ Moving on to look at Bates van Winkelhof v Clyde & Co. Focusing on the connections between s.230(3)(b) ERA and s.80(2) EqA - which will allow her to bring in the helpful (to Uber) judgments on s.80 in Mingeley v Pennock.
11/ Heavy reliance is placed on Lady Hale's well-known disregard for subordination as part of the limb (b) worker test.
12/ Moving on to Gilham v MoJ (a s.43K case where the Supreme Court found judges fell within the extended definition of worker). Relying on this case as an orthodox approach to the statutory wording to determine whether the relationship fell within that wording.
13/ @DinahRoseQC relies on the SC acknowledgement in Gilham of the statutory requirements governing the judicial relationship as showing the CA was wrong in Uber to count against Uber that parts of their relationships with drivers resulted from statutory requirements, not choice.
14/ Elements a party applies due to statutory obligation should not be weighed in the balance against Uber in determining the relationship. The Court of Appeal erred in holding otherwise. It would be different if the statutory scheme required employment of drivers as workers.
15/ Moving on next to Pimlico Plumbers v Smith, @DinahRoseQC notes that that case concentrates on the 2nd and 3rd elements of limb (b) and not the first. Notes again the Supreme Court repeated that the ERA s.230(3)(b) & EqA s.80(2) apply the same test.
16/ Moving on to Autoclenz now. @DinahRoseQC submits it can't be the law that different principles of contractual construction apply when a party submits that a contract falls within the relationships under the ERA.
17/ Notes that in Autoclenz the dominant party had a commercial incentive to record in writing an agreement which in terms don't accord with the substance of the actual relationship.
18/ This may be relevant to identifying the true terms of an agreement and whether the written terms accurately record the substance of the agreement. This isn't restricted to the employment context.
19/ @DinahRoseQC submits the written terms should be the starting point of analysis rather than relegated to just one factor or to a situation where the court is invited to deduce the contractual terms disregarding the written terms.
20/ Where conduct is ambiguous vis-a-vis the terms, that shouldn't open the door to a wide Autoclenz construction of the terms. If the acts are consistent with the written terms, the court shouldn't apply an abnormal approach to contractual construction.
21/ Lady Arden wonders whether one should still be required to ponder whether the written terms are the complete terms (the Carmichael situation). @DinahRoseQC accepts that but that it is not this case.
22/ [Short brownie break intermission] (a benefit of working from home, see: - I can report it is very good indeed)
23/ Key considerations are 1) consistency between written terms with the actual relationship, and 2) how those terms are categorised under the various statutory categories of relationship.
24/ Lord Reed gives a glimpse into his thought processes - that the legislation has a protective purpose & that that should be key to the analysis (clearly having read @thebigbogg & @MichaelFordQC's case comment on the CA judgment).
25/ @DinahRoseQC seeks to turn that around by suggesting the statutory purpose is to protect those falling within the statutory definitions - i.e. don't extend the protective purpose so that it's a big statutory hug trying to bring everyone into its arms.
26/ @DinahRoseQC emphasises the exercise IS one of contractual construction. Parliament has chosen to establish the limits of the rights through a contractual framework. Wrong for courts to break free of the chains of a party's contract by relying on a broader purposive approach.
27/ Lord Leggatt considers Autoclenz doesn't start from a presumption that the written agreement is what has been agreed (the L'Estrange approach) but looking at what has actually been agreed.
28/ He makes the alarming suggestion that if the driver hasn't read the agreement, the written terms may not even 'get through the door'. @DinahRoseQC suggests that would throw the normal contractual construction terms out of the window. Perhaps time to bring in Secret Hotels2?
29/ The mid-morning virtual break brings down the curtain on Act One. For Act Two, have Autoclenz to hand! bailii.org/cgi-bin/format…)
30/ Expect @dinahrose to start Act 2 by coming back against Lord Leggatt's suggestion that you throw ordinary principles out of the window with the qualifying terms set out in Autoclenz para 22. Hence Uber's case of consistency between written terms & actuality.
31/ During the break I'm listening into my wife's away day. They are still talking brownies! They've now moved on to focaccia. I think we need zoom away days at @42BR_Employment
32/ Missed a few minutes by not realising the need to refresh to bring back the hearing. Anything exciting in my absence?
33/ @DinahRoseQC starts analysis of Autoclenz from Aikens LJ's judgment in the CA (heavily endorsed by Lord Clarke in the SC), noting Aikens LJ's position on "the true ratio" was that the Autoclenz approach applies where written terms don't reflect the true agreement.
34/ Emphasis is placed on Aikens LJ's reluctance at para 91 to place too high a reliance on the parties' private intentions or expectations in the contract. And that the bargaining position may merely make it more common to have to conduct the 'true intentions' exercise.
35/ The key point in Autoclenz is that the facts found about the true agreement was 'flatly inconsistent' with what was written down.
36/ Lord Reed isn't convinced, suggesting that the Autoclenz approach is much broader than whether the term is real or a sham. Relying on the tax cases, terms could be real for one purpose but immaterial for another purpose.
37/ Approaching Uber in that way and assessing whether the terms are sham terms won't, according to Lord Reed, get to the right point, especially given the protective purpose of the legislation, especially the NMWA.
38/ @DinahRoseQC makes the point that 'sham' under Autoclenz is clearly wider than under Snook (which effectively required conspiracy in the sham by both parties).
39/ Suggests also that Lord Reed's approach would go significantly beyond Autoclenz & misstates the statutory purpose, given that the statutory purpose of the NMWA isn't protective to everyone but protective to those who the statute brings within its folds.
40/ Going back to Autoclenz in the CA, Sedley LJ's judgment showed that the construction of the contract was to be determined by reference to contract law and not to be influenced by an approach of statutory protection.
41/ In the Supreme Court, Lord Clarke goes out of his way to endorse all of the key paragraphs of the Court of Appeal's judgment (I've vague memories of writing an article at the time suggesting if you want to know what the Supreme Court held, just read the CA judgment).
42/ In looking at Smith LJ's clarification of "as time goes by" as a means of ex post facto analysis of the written contract, @DinahRoseQC emphasises that this is a matter of orthodox contractual construction.
43/ Para 35 is introduced by @DinahRoseQC as the paragraph that could lead to misunderstanding (and has really governed the questions to her so far).
44/ @DinahRoseQC criticises an approach that starts from looking at the relationship between the parties in the round and a court then deducing what is the best fit, but suggests it is either not what Lord Clarke meant in Autoclenz or was wrong if he did mean it.
45/ @DinahRoseQC struggles with the last part of para 35 of Autoclenz. I think essentially she is suggesting that the Court should ignore Lord Clarke save to the extent that he is true to the judgments of Aikens & Sedley LJJ which he expressly endorsed.
46/ All of that legal analysis sets the groundwork for how @DinahRoseQC would like the Court to view the contractual terms, to which she now turns.
47/ Starting off looking at the App. @DinahRoseQC ponders whether all members of the court have taken an Uber. Faces inscrutable, but I suspect Uber Exec if at all.
48/ @DinahRoseQC's analysis of the relationship between Uber BV and drivers is one of a licence by which drivers benefit from keying in to the commercially valuable app.
49/ Makes the point that the terms of the arrangement with Uber BV presuppose that the local affiliate (i.e. Uber LL) will be setting requirements for the drivers.
50/ @DinahRoseQC notes that the contract between UBV & drivers sets out services provided by UBV, and there's no suggestion those services aren't provided. All of her submissions in this section will be of a piece, to show consistency between written terms & the actuality.
51/ @DinahRoseQC is now going through the contractual provisions to support this proposition. It's a necessary but drier aspect of her case, so one in which I can give my fingers a bit more of a break from typing this thread.
52/ Looking at the contractual terms dealing with switching on/logging off the driver app. There's no obligation to switch on the app or to accept a trip (ctd...)
53/ The forcible logging off when a driver doesn't accept multiple trips & the removal of drivers with low acceptance rates is merely a nod to the commercial reality for Uber - if you're not going to accept a trip, don't log on & give passengers a false impression of availability
54/ After lunch, @DinahRoseQC starts with the Private Hire Vehicle (London) Act 1998. This is an important aspect of Uber's case as they say much of their relationship with drivers resulted from statutory requirements. The CA found that even so they could count against Uber.
55/ Sensibly, @DinahRoseQC says that whatever approach is taken to Autoclenz, the terms of the agreement accord with the actual relationship. A route through for the Supreme Court even if they remain against her on what Autoclenz says.
56/ @DinahRoseQC is currently taking the Supreme Court through the ET judgment's findings to paint the Uber terms as standard, mundane and no more than commercially sensible.
57/ One of the fascinating things about this advocacy is that @DinahRoseQC uses a tone of voice directed towards suggesting that her every submission is wholly unsurprising. In other cases, you'll see Dinah as an advocate brimming with passion but that wouldn't work here.
58/ Dealing now with the forcible logging off after 3 failures to accept a trip (a key control point), @DinahRoseQC asserts that the ET mischaracterised the policy. 10-min automatic log out is after 2 weeks of low take up & 2 sets of notifications.
59/ It's inconsistent with obliging drivers to accept trips when logged on, but rather of the understanding that if drivers are logged on they are saying they are available (an indication both to ULL & to the potential passengers).
60/ She says it isn't akin to an obligation to accept trips. Inconceivable an employer would allow an employee to refuse anywhere near to the extent Uber drivers are able to. & even when they reach the last stage, they are just logged off for 10 mins, not forced to work.
61/ Now we're into Uber's comparison with other cases. 1) Plenty of taxi/minicab cases with relationships held genuine; 2) the Yuen & Quashie cases show far greater integration without statutorily protected relationship.
62/ Putting those first two to one side for the moment, @DinahRoseQC gets to the Secret Hotels2 case, where an internet agent for hotel bookings was accepted as an agent without sham terms notwithstanding the advantages of the terms to the agent.
63/ Somewhat surprisingly (as Underhill LJ, I think, noted in the CA), even though Secret Hotels2 was heard after Autoclenz & even though the Court there relied on all the case law relied on in Autoclenz, the judgment in Autoclenz didn't even make it to the authorities bundle.
64/ Going back to minicab cases, @DinahRoseQC makes @DazNewman's point (though to be fair she made it below too) that the difference between Uber & Mingeley is not one of nature but merely of scale.
65/ Side note, I see that I've just been followed by @Yaseenaslam381 . This has happened a few times to me during Twitter threads on people's cases and always brings to mind this great paragraph from Lord Reed in the Unison case:
66/ @DinahRoseQC makes the point (showing her flexibility to the Court's concerns) that Mingeley was unquestionably about a protective statutory scheme (the RRA) but that that itself doesn't change the basis of analysis of the contract.
67/ Lord Hodge points out that in Mingeley the driver paid a fixed fee to the car company rather than a commission per ride, whereas here the actual working gives Uber income. @DinahRoseQC notes the same is so for barristers' clerks' commission (does this still happen?)
68/ Onto Cheng & Quashie now - we're into the caddy and lapdancer section of the submissions.
69/ Considers Uber a fortiori with Cheng, where the Privy Council found the caddy provided his services to individual golfers (the equivalent of the Uber passenger) rather than the golf club (the equivalent of Uber).
70/ Here is the part on which @DinahRoseQC places particular reliance, whilst also pointing out that any requirements in the relationship there was merely one for protection of the club's commercial benefit:
71/ Moving on to Quashie (about whether a lapdancer was employed by Stringfellows or licensed by them to dance at the club under a contractual arrangement). @DinahRoseQC notes that in Quashie the dancers were obligated to work particular shifts.
72/ Even with that obligation, the CA upheld the ET's finding (which the EAT had wrongly overturned) that there was no employment relationship - there was nothing implausible in that finding.
73/ Now onto Secret Hotels2 (a case in which both Lords Reed and Hodge found in favour of the hotel booking agent). The question was whether the booking company contracted with customers as principal or as agent for the hotel. The CA had found them a principal.
74/ The Supreme Court's judgment was that there was nothing inconsistent with agency in the way that this relationship was governed. Heavy reliance placed on para 39, where the Supreme Court held an inequality of bargaining power doesn't mean the contract doesn't reflect reality.
(paragraph 40 even - para 39 also relied upon to show how heavily the contract fell in the booking agent's favour)
75/ Moving now onto the finding that any worker contract was in operation whenever a driver was logged on.
76/ Looking then to the ET's conclusions, criticism is made of the ET's reliance on the scale of Uber as against smaller firms as a point of difference.
77/ The pejorative description of the direct contract between driver & passenger is, says @DinahRoseQC, not in any way outlandish when you accept Uber as agent. The driver agrees they will learn of the destination at pick-up for an algorithmically arrived at fee.
78/ @DinahRoseQC then deals with the 'nonsense' of the suggestions that drivers could be responsible for fares paid in the circumstance of insolvency, & passengers bearing liability for NMWA payments - both of which were found to be wrong by the CA at para 93 of the majority.
79/ @DinahRoseQC asks the court whether the reasoning in para 91 is flawed. If flawed the appeal should be allowed & either the decision should be reversed or the matter should be remitted (@MattJEJackson will be content now).
80/ @DinahRoseQC suggests that the ET should have addressed the agency question by asking whether drivers were providing services to passengers with Uber as agent rather than asking a binary question of whether drivers were working for Uber or vice versa in para 92.
81/ Moving on to criticism of the CA, there's an error in the interpretation of Autoclenz. @DinahRoseQC objects to the court having an enhanced ability to find the written terms don't accord with the real agreement where the question is one of whether the limb (b) test applies.
82/ To find in that way is to make the basis of construction depend on the outcome, which can't be right.
83/ @DinahRoseQC suggests there's only a solitary basis for the CA's finding that the reality doesn't reflect the contract & it's an unsustainable one as there's no reason a driver can't contract to take a passenger to their destination pursuant to the standard terms of the App.
84/ The submission is interrupted by @galbraithmarten noting the time allocation has ended without Working Time being dealt with. One major change from Lady Hale to Lord Reed is that the former had an incredible ability to keep a stickler's eye on the clock at all times.
85/ Turning to the regulatory regime, @DinahRoseQC accepts it is very important, but says it can't define worker status when it is something that is imposed on the parties.
86/ 6 minutes over time, Uber turns from issue 1 to issue 2 (if workers, when are the drivers working?). @DinahRoseQC submits that they are only working when driving.
87/ Being logged on says nothing. A driver has no obligation to accept a ride and can also be logged on to other apps. On the CA analysis, they can claim the minimum wage from all apps by driving around for an hour without taking a ride!
88/ Uber's submissions end. 20 minutes of @galbraithmarten before the end of the day.
89/ @galbraithmarten frames the 'central issue' as being whether the ET was 'entitled' to find the drivers worked for Uber, given that the ET did find an inconsistency between the reality and the written terms.
90/ 5 key submissions: 1) In this case, there's no written contract between ULL & drivers. Notes it had never previously been part of Uber's case below that the attendance at ULL for recruitment interview makes ULL the driver's agent. The CA notice of appeal never made this case.
91/ @galbraithmarten suggests the way Uber's case is put on this is merely an afterthought to address a lacuna.
92/ Thus given the lack of written terms with ULL, Carmichael is the applicable test on determination of the terms.
93/ The 2nd submission is that the relationship question necessitates a finding of fact. It's about identification of the relationship between the parties in the absence of written agreement.
94/ 3rd, taking that approach the ET found as a fact that the drivers worked for Uber. The key finding is that at para 93 of the ET judgment. It's incompatible with the written documents & thus entitled the ET to make a finding based on that incompatability.
95/ 4th, the ET made findings of fact wholly inconsistent with the written terms on which Uber relied - controlling drivers in the performance of duties in numerous ways, contrary to the written term relied upon. Also ET found drivers obliged to do some work.
96/ 5th, as per Lady Hale in Bates van Winkelhof, there's no substitute for applying the statutory wording. If the 5 propositions are accepted, the appeal must be dismissed irrespective of a view taken on the approach.
97/ A really excellent and punchy start by @galbraithmarten. Clearly structured, challenging the framework in which @DinahRoseQC wants the Supreme Court to decide the case, & giving the court a simple route to dismissing the appeal.
98/ @galbraithmarten takes the court to Lord Reed's comments about imbalances of power in the Unison case - always good to refer Supreme Court judges to their own helpful comments. Suggests that the social policy objective applied to employees also applies to workers.
99/ Taking the court to the basic distinction between workers who are self-employed & purely self-employed in Bates van Winkelhof & to then Recorder Underhill's comments on the same point in the Byrne Brothers case.
100/ End point for the Supreme Court to chew over overnight - the claimants earned their living driving a minicab for Uber. It was their job. All the ET found was that they were deserving of the statutory protection.
101/ Lord Reed ends by asking if the claimants are going to look at the tax law cases, drawing attention to the Supreme Court judgment in the UBS case (which doubtless all will be reading carefully tonight!).
102/ Not sure I'm going to be able to live tweet tomorrow (parenting duties may well take priority) but hope this has been a useful thread to anyone who has cared to follow parts of it, whether a @ukemplaw-yer, a party to the case, someone with a vested interest or otherwise.
For anyone wanting to prep their own shadow submissions (or just to ponder what's in Lord Reed's mind), here's the UBS judgment & the paras about purposive statutory construction & its impact on consideration of the facts: supremecourt.uk/cases/docs/uks…
