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Legal Corner: Uber loses court challenge over language tests for its drivers

28th Apr 2017

Uber has been in the legal news rather frequently over the past few months; at the end of 2016, it lost a case brought by two of its drivers who argued that they were workers rather than self-employed operators, which entitled them to holiday pay, sick pay and to earn the minimum wage. That decision is now the subject of an appeal.

This month, Uber was involved in a judicial review brought against Transport for London, who in their position as a regulator of the private hire vehicle sector imposed a number of requirements on all private car hire drivers and operators; R (on the application of (1) Uber London Ltd (2) Sandor Balogh (3) Nikolay Dimitrov (4) Imran Khan) v Transport for London (2017).

The key issue in the case was a decision by TfL to require all private hire drivers to communicate in English at Level B1 of the Common European Framework of Reference for languages (B1 CEFR), which requires speaking, listening to, reading, and writing English at an appropriate level. Uber argued that the requirements in relation to reading and writing amounted to discrimination on grounds of nationality or national or ethnic origin and that they were disproportionate. They argued that a substantial number of their drivers did not speak English as their first language and that a number of existing drivers would fail the test or be deterred from applying. Indeed the judge accepted that it was likely that 40,000 drivers would either fail the test or not apply for a licence over the next three years – although Uber argued that it was likely to be nearer 70,000.

The question for the court was whether the measures imposed were proportionate; were they suitable to achieve the proposed objective, and was there a less onerous method available. TfL also had to identify a public interest; in this instance, they argued that this related to the safety, welfare and convenience of passengers. TfL argued that a Level B1 command of English was required so that a driver could deal with a medical emergency, explain a fare or route to a passenger, provide him with other information, and understand any notifications he might receive, such as the recall of his vehicle for safety reasons.

The use of the Level B1 tests was criticised as it required candidates to read and write a short essay on a subject that had nothing to do with driving. However, there was no driver-focussed test available. The court accepted that TfL, as the statutory regulator, was entitled to require that drivers have the level of English required by the Level B1 tests. It also accepted that it was not required to wait for a purposely designed test to be created, but could require drivers to demonstrate compliance by the end of September 2017.

Uber requested permission to appeal the decision from the judge, but this was refused. They are entitled to appeal directly to the Court of Appeal and have said that they are currently considering their options.

For the moment, those who hold a private hire licence from TfL will need to ensure that they take, and pass, the B1 language test by the end of September 2017 if they wish to continue to operate.

Safia Tharoo, Barrister, 42 Bedford Row, London

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