At issue in Rasier Operations BV v E Tū Inc was the test for employee status set out in s 6 Employment Relations Act 2000. The CA followed the approach identified by the Supreme Court in Bryson v Three Foot Six Ltd (Bryson) of focusing on “the realities of the parties’ mutual rights and obligations”.

The CA found that the level of control exercised by Uber when a driver was logged in was consistent with an employment relationship. After assessing the 'fundamental test' of whether drivers were carrying on a business on their own account or working in Uber’s business, the CA considered that it was clear that the drivers were employees.

“We do not consider that drivers can, in reality, be said to be carrying on transport service businesses on their own account at times when they are logged into the driver app, providing services to riders referred to them by Uber for the remuneration determined by Uber, and subject to the high level of control and direction that Uber exercises over the provision of services by drivers while logged in.” (at [234])

However, the CA was critical of the way the Chief Judge had expressed the test for employee status, saying that the task was “simply to apply the test set out in s 6 as explained by the Supreme Court in Bryson” (at [123]).

It noted that the test remained the same even when applied to the ‘platform economy’.

“A platform economy worker who is properly classified as an employee is no less in need of the protections for which the ERA provides than any other employee, and no less entitled to those protections.” (at [6])

The CA decision joins a growing list of international judgments that have also examined the question of employee status for Uber drivers.