The case involved a group of around 10,000 current or former Bolt drivers, who brought tribunal claims for national minimum wage and holiday pay. To succeed with these claims, the claimants first had to establish that they were ‘workers’ of Bolt, rather than self-employed independent contractors.

The Employment Tribunal’s decision

The ET considered two questions:

(1) were the claimants ‘workers’; and

(2) if so, during what period were they working? 

Were the drivers workers?

To decide this question, the ET had to consider whether the claimants met the statutory worker test. In other words:

• Did they work under a contract with Bolt?
• Were they required to perform work personally (meaning they couldn’t use a substitute to do the work for them)?
• Were they not running a business of which Bolt was their customer?

The ET concluded that the claimants were ‘workers’ of Bolt.

In the relevant period, Bolt had two operating models. The earlier was referred to as the ‘Agency Model’, and the more recent as the ‘Principal Model’. The ET found that the claimants were workers under both models.

Under the Agency Model, Bolt’s primary case was that it acted as an agent or intermediary between passengers and drivers, with Bolt providing payment collection and processing services to facilitate the relationship between the two. Bolt’s alternative case was that, if it was in a contract with the drivers, then Bolt was their customer – so the claimants could not be ‘workers’ under the statutory test.

The ET rejected Bolt’s primary argument. According to the ET, the true position was that on each assignment the claimants were engaged by Bolt as ‘workers’ in its transportation business. It also rejected (on similar grounds) Bolt’s alternative case, finding that it was inconsistent with the practical reality.

Under the Principal Model, Bolt also disputed that it engaged the claimants to provide services personally. It pointed to its ‘Bolt Link’ scheme - which allowed drivers to have other drivers operating under their Bolt account – as negating the essential element of personal service. The ET rejected this, holding that drivers were nonetheless engaged under contracts to provide their services personally to Bolt.

During what periods are drivers working?

Bolt accepted that, if the drivers were ‘workers’, then they were working from the point of accepting a Bolt trip until its conclusion or cancellation. The dispute centred on whether the drivers were also working when they:

• were in the area they were licensed to operate in, and
• had the Bolt App switched on.

The drivers did not go so far as to argue that they were working when ‘multi-apping’ (this is the practice of drivers making themselves available to multiple operators at the same time) but nonetheless maintained that their working time (for the purpose of national minimum wage and holiday rights) started before they actually accepted a trip.

The ET considered the case law, including the Uber decision, and decided that it needed to work out whether the ‘irreducible minimum of obligation’ - which is an essential prerequisite of any worker contract – existed during these times, and not just when the drivers were on a trip.

The ET reached a mixed verdict on the eight drivers chosen as sample claimants for the purposes of the claim.

For two of the sample claimants, the ET found that there was no mutuality of obligation until the driver accepted a trip, because Bolt did not require them to accept any trips and had communicated this to those claimants effectively. This meant that no ‘worker’ contract could come into existence until the moment they accepted a trip.

By contrast, for six of the sample claimants, the ET reached a different decision.  The crux of this decision was the ET’s view about what these drivers knew or were told about Bolt’s change of practice in 2021. From 2021, Bolt had discontinued its practice of requiring drivers to accept a certain number of trips to avoid being blocked from using the Bolt App. According to the ET, Bolt had failed to establish that it had communicated this change of practice to the six sample claimants. This led the ET to conclude that, for those claimants, an ‘irreducible minimum of obligation’ existed when they:

• were in an area where they were licensed to operate,
• switched on the Bolt App,
• were ready and able to accept trips, and
• were not ‘multi-apping’.

For national minimum wage purposes, the ET concluded that the claimants were not paid by reference to set hours and were not paid by output so (since they were clearly not salaried) this left them in the residual category of doing ‘unmeasured work’.

Future implications

The litigation will continue in the ET to determine the claims for holiday pay and minimum wage.  

Given the ET’s split findings, this task may not be straightforward, with consideration needing to be given to what each claimant was told or knew about Bolt’s decision to discontinue its practice of blocking drivers who did not meet their acceptance rate levels; or when they were first commenced engagement.

In practical terms, it is not straightforward to calculate holiday accrual and pay for individuals working in the gig economy on a series of micro ‘gigs’ (with no expectation of what hours are worked or when). From January this year, the rules were clarified for irregular hours workers to formalise the approach of allowing rolled-up holiday pay at 12.07% which may help going forward in situations where the individuals are rightly classed as workers rather than self-employed independent contractors.

As this is only a decision of the ET, it is not binding in other cases. Several other similar cases are under consideration by different ETs, who will be interested in this judgment. However, these cases about worker status are very fact specific and other ‘gig economy’ cases may not necessarily be decided in the same way.  As set out above, Bolt’s earlier practice of blocking drivers who did not meet its acceptance rates ended up being key to the ET’s decision, but another case may be decided on different factors.

One question left unanswered by the ET’s decision relates to multi-apping. This was not something the ET had to grapple with, given the drivers’ concession that they were not working while multi-apping. This means that there is still no guidance on how operators should deal with individuals who use two or more apps at the same time and whether they can be said to be ‘working’ under two contracts at once (and therefore be entitled to payments in respect of both).

Finally, before winning the election in July 2024, the Labour party had indicated that it intended to change the current three-tier system for employment status and replace this with a simpler two-tier system, by removing the distinction between employees and workers. This proposal was not contained in the Employment Rights Bill but the government nonetheless still plans to consult on it. This means that, as well as future court decisions, we may in due course see legislation leading to further changes - although this is unlikely to be until the later part of the government’s term in office.