The UK court has recently considered that an Uber driver is a worker of Uber under UK employment law. In this post, we will consider if similar conclusion could be reached under Vietnamese law using the UK court’s reasoning. Under Labour Code 2019, an employee means a person working for an employer pursuant to an agreement, such person is paid wages and he/she is subjected to management and supervision by the employer. Based on the definition of employee under the Labour Code 2019, it is more likely than not a Uber driver or, since Uber has left Vietnam, a similar “gig” driver could argue that he/she is an employee of the platform owner instead of a third party contractor using the arguments raised by UK court.

The table below provides a more detailed analysis:

No.	Opinion by UK Court	Potential argument by Vietnam gig driver
1.	Where the ride is booked through Uber Application, it is Uber who sets the fare. As such, Uber dictates the level that Uber driver is paid for the work they do.	A gig driver could make a similar argument as Uber driver. Clearly, for the work performed (i.e. providing transportation service to the platform owner’s passengers), the driver is paid the fare of the trip (determined by the platform owner) less the fees for using the platform, as agreed by the driver and the platform owner.
2.	Contract terms are imposed by Uber and Uber drivers have no say in the terms that are applied.	The terms of services between a platform owner and an user in Vietnam are decided by the platform owner. There is no indication that the gig driver can amend such terms.
3.	Once logged on the driver’s choice is constrained by Uber i.e. Uber monitors the number of trip requests that the driver cancels. Uber can take steps to penalise Uber driver if he/she refuses too many rides including automatically logging them off from Uber Application.	Once a driver has logged onto the platform application, the driver’s choice about whether to accept requests for rides is constrained by platform’s owner. One way in which this is done is by monitoring the driver’s rate of acceptance (and cancellation) of trip requests and imposing what amounts to a penalty if too many trip requests are declined or cancelled by making the fare and destination for a trip unavailable to the driver, warning the driver, suspending or banning the driver from using the application.
4.	Uber exercises control over the way over Uber driver provides their service. For example, they apply a rating system and, if Uber driver fails to maintain a certain rating they can be removed from Uber Application.	The platform application usually directs the driver to the pick-up location and from there to the passenger’s destination. If a different route is chosen and this takes more time to get to the destination, the driver could be subject to suspension from the application. In addition, a platform owner usually uses a ratings system whereby passengers are asked to rate the driver after each trip. Any driver who fails to maintain a required average rating will receive a series of warnings and, if their average rating does not improve, eventually have their relationship with platform owner terminated. Although the ratings are disclosed to passengers, passengers are not offered a choice of driver with, for example, a higher price charged for the services of a driver who is more highly rated.
5.	The relationship between Uber driver and the client is very limited as the communications between the passenger and Uber driver are kept to a minimum so that Uber driver is prevented from establishing any relationship beyond an individual ride.	Similar arguments could be made as follows: · Communication between driver and passenger is restricted to information relating to the ride and is channelled through the application in a way that prevents either from learning the other’s contact details; and · Collection of fares, payment of drivers and handling of complaints are all managed by platform owner in a way that is designed to avoid any direct interaction between passenger and driver.

In Vietnam, some platform owners sign a “co-operation contract” (Hợp đồng hợp tác) with its drivers to regulate the terms of the parties’ relationship. However, a quick review of a sample co-operation contract indicates that the terms of the co-operation contract are not consistent with the requirements of the Civil Code 2015 on co-operation contracts. For example, the Civil Code 2015 provides that the parties to the co-operation contracts will jointly bear liabilities. However, in providing services to the customers, all the risks are borne by the gig driver not the platform owner. The Civil Code 2015 also provides that parties to a co-operation contract will participate in making decision. Again, in providing services to customers, the platform owner (not the driver) makes all the decisions.

This post is written by Nguyen Quang Vu with input by Trinh Phuong Thao, Tran Kim Chi, Nguyen Thuc Anh, and Le Vo Thuy Tien.

Vietnam Business Law