A Contractor/Employee Update – Uber & Ors v E Tu Incorporated & another
On 17 November 2025, the Supreme Court delivered its decision in the case that has colloquially become known as the Uber case.
The Employment Court and Court of Appeal had previously declared that the four Uber drivers that were the subject of the decision were, while using the Uber driver app, employees of Uber. The Supreme Court, while split 3:2 in its reasoning, unanimously agreed with the Employment Court and Court of Appeal that the drivers in question were employees and not contractors despite the wording of their Service Agreements which included a clause expressly stating that the Agreement is not an employment agreement.
The majority of the Supreme Court found that no weight should be given to contractual language which disguises the real nature of the relationship.[1] A contract offered on a “take it or leave it” basis, as in this case, meant it is less likely that the parties’ intentions are genuinely reflected in the wording of that contract.
They went on to state that to allow one party to classify the nature of the relationship as one of contractor/principal, when that classification was in itself untrue or inaccurate, would be to allow that party to dictate whether employment legislation applied. This would be fundamentally at odds with the objectives of the Employment Relations Act 2000.
When determining the true nature of the employment relationship, the Court applied the control, integration and fundamental test analysis and found that this pointed towards the Uber drivers being employees: Uber exercises a high level of control over every aspect of the passenger transport services provided by its drivers; drivers are integrated in the more substantive sense in that they are the face of the business; and lack of control over the quantity and quality of work received, the price they are paid and their inability to build goodwill, all point to that finding. In the minority decision, after considering the intention of the parties, it was still held that the factors pointing away from employee status were outweighed by the factors pointing towards it.
Broadly speaking, a user of the Uber app would not reasonably believe that they are contracting with the driver when they book a ride. They ordered the service from Uber and agreed to pay Uber for that service.
The above is an important reminder for employers and employees alike – notwithstanding your contractual terms or intention, the relationship may still fundamentally be considered one of employer-employee. If you have questions or need advice around this, please contact our Employment Team at Harmans.
[1] The minority considered that if both parties genuinely intended their relationship to not be one of employer/employee, that should be given some weight.
