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Indirect discrimination and proportionality in Uber v Transport for London

In one of many battles between Uber London and Transport for London (TfL), Uber sought to challenge the requirement for London taxi drivers to pass an English language test.

In R (on the application of (1) Uber London Ltd (2) Sandor Balogh (3) Nikolay Dimitrov (4) Imran Khan) v Transport for London [2017], the High Court held that requiring private-hire vehicle drivers to pass an English language test was a proportionate means of achieving a legitimate aim. This outcome is not one that Uber had hoped for and it will inevitably have numerous ramifications for the organisation and its workers.  

The claimants were all private-hire vehicle drivers working for Uber. Transport for London is the regulator of the private-hire vehicle sector in the city; it requires private-hire vehicle drivers to communicate in English and applies a test to all applicants for a licence.

Indirect discrimination

Uber challenged the lawfulness of its drivers requiring certain English language skills, because a large proportion of drivers do not speak English as their first language. Uber argued that this prerequisite was not only contrary to European Union law but that it was indirectly discriminatory on grounds of nationality or national or ethnic origins, on the basis that non-British drivers would find it more difficult to pass the test.

The test required drivers to write an essay, which was unrelated to driving and could be on a variety of topics. Uber argued this requirement was disproportionate and, although they accepted that private-hire vehicle drivers must be able to communicate with their passengers, they said that they did not need written English-language skills. Uber argued that the requirement could result in many drivers failing the test or being discouraged from applying for their licences.

Proportionate means of achieving legitimate aim

However, the High Court disagreed and held that a written English-language test is a proportionate means of achieving a legitimate aim. The legitimate aim was the safety, welfare and convenience of passengers, which would ensure that they are transported safely from their locations, resulting in higher standards of care for passengers. Further, by possessing such language skills, a private-hire vehicle driver would be able to deal with a number of situations (such as a medical emergency or explaining a fare or route to passengers), all of which were found to be legitimate aims. It was not apparent that TfL could have tested this level of communication in English in a different way.

Uber has appealed the decision. The appeal will be heard in February 2018 by the Court of Appeal and the tests are due to be introduced in April 2018. At the time of writing, TfL had just announced that Uber will be banned in London because of its “approach to reporting criminal offences”. It therefore appears that the conflict between TfL and Uber will continue for some time.

Employment Tribunal

Although the reasoning in this case does not arise from an Employment Tribunal, it is nevertheless relevant in an employment law context, as employers need to bear in mind the implications of applying a provision, criterion or practice (PCP) that might indirectly discriminate against a group of people. If this occurs, employers may find themselves having to defend discrimination claims. Conversely, employers who need to impose conditions similar to those of TfL may be reassured that their actions will not necessarily be deemed discriminatory. In order to defend claims from a PCP, employers need to be confident they can show that the PCP is required and that there was no other less discriminatory way to achieve its aim.

For more information on any of the issues raised in this article, please contact Fawziyah Javed by emailing fjaved@lyonsdavidson.co.uk or calling 0113 368 7825.

 

Posted on Oct 17th, 2017 by Lyons Davidson