THIS RULING REPLACES THE RULING PUBLISHED ON 15 DECEMBER 2021. THE DECISION TO UPHOLD REMAINS BUT ON REVISED GROUNDS.
A paid-for ad on The Economist app and a national press ad for Uber were seen in June 2021.
a. The ad on The Economist app was headed “Your driver is” then listed the following: “Nasir, with a 4.97* rating; 2 minutes away; Feeling good about his access to sickness cover; Driving a silver saloon; Receiving pension contributions to grow his nest egg; Now 1 minute away; Planning a staycation with his holiday pay; Just at the end of the street; Attending free Open University courses; Expecting his first new parent payment next week”.
Large text stated “Only on Uber”. Small text stated “The benefits described here as available Only on Uber are in comparison with other large app based private hire operators in London. Eligibility criteria apply”.
b. The national press ad was identical.
The ASA received three complaints, one about ad (a) and two about ad (b). All three, who believed companies were legally obliged to provide most of the benefits listed and that they were not unique to Uber, challenged whether the implication that Uber was the leading provider of those benefits in comparison with other London-based cab ride providers was misleading and could be substantiated.
Uber B.V. (Uber) said they saw Bolt, Ola and FreeNow as the relevant competitors for the purposes of the “Only on Uber” claim. They agreed with the complainants that pension and holiday pay were required to be provided by law by all operators but said sickness cover, parental payments and access to free Open University courses were not legal requirements and were provided voluntarily by Uber. They had undertaken research which had shown them that the other operators did not provide those benefits. They supplied a comparative list of benefits from the conclusions of that research.
Following a Supreme Court judgement in February 2021, Uber understood that they and their competitors were legally required to treat drivers who partnered with them as “workers”; an employment status between an “employee” and “independent contractor” which conferred certain legally required benefits on the workers (auto-enrolment into a pension scheme, with contributions from the driver and the company, and holiday pay). They understood that their competitors did not share that interpretation and did not therefore, in fact provide those benefits.
The ASA considered readers would see the list of benefits in conjunction with the text “Only on Uber” and “The benefits described here as available Only on Uber are in comparison with other large app based private hire operators in London” as an objective, comparative claim and conclude that, among large app based private hire operators in London, Uber alone provided those benefits. We considered that, as well as being relevant to drivers, the claim would also be of interest to consumers who wanted to support a business that offered more benefits to its employees than its competitors.
We noted the research Uber had undertaken which suggested that, of the benefits they provided, the ones which were not legal requirements were not provided by the other private hire operators they had compared themselves with. We noted that Uber had been compelled to offer certain benefits to their drivers after a Supreme Court ruling that Uber drivers were workers and were thus legally entitled to minimum hourly rates (which was not a benefit listed in the ads), holiday pay and, where the worker’s age and earnings gave rise to entitlement to a pension, auto-enrolment in a pension scheme (which were benefits listed in the ads). However, despite Uber’s belief, the Court ruling did not automatically apply to other operators. The test as to whether someone was a “worker” (who should have at least some rights akin to an employee) or an independent contractor being fact specific, and dependent on how the app providers’ businesses operated and the nature of their engagement with their drivers.
We noted that the extent to which other operators, and in fact Uber themselves, provided and were required by law to provide, certain benefits for their drivers, and the extent of those benefits, was a matter of several ongoing legal disputes. We took the view that the Courts and Tribunals were best placed to determine these issues and we did not therefore make a finding as to whether the claim was substantiated or not.
However, it was still Uber’s responsibility to ensure that, in addition to holding adequate evidence for the claim, the comparison was verifiable. Verification for the claim could have explained the background and the context in which Uber considered the claim had been substantiated. As it was, the ads contained no such information (e.g. identifying the comparators), and did not signpost readers to where that information could be found. Because we considered that Uber’s advertising had not provided or signposted verification of the claim that all the benefits listed were provided by them alone and were not provided by other large private hire operators in London, we concluded that the ads were in breach of the Code.
We made no finding as to whether or not the ads breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.33 (Comparisons with identifiable competitors), but did find a breach of 3.35 (Comparisons with identifiable competitors).
The ads must not appear again in the form complained of.