The Supreme Court's decision released on 17 November 2025 concerned the question of whether four Uber drivers are employees under s 6 of the Employment Relations Act 2000 or, alternatively, were independent contractors, as argued by Uber: Rasier Operations BV v E Tū Inc [2025] NZSC 162.
This question was previously considered by the Employment Court which, on 25 October 2022, found the drivers to be employees. On 26 August 2024, the Court of Appeal came to the same conclusion.
The Supreme Court has now unanimously dismissed Uber's appeal and, applying the long-standing Bryson v Three Foot Six Ltd framework, held that s 6 requires ascertaining the real nature of the relationship by considering all relevant matters, including the traditional common law tests of intention, control, integration and the “own business” or fundamental test.
While the Supreme Court was unanimous in its decision to dismiss the appeal, the Court was split 3:2 on the reasons for this. The majority found that:
- Uber is in the business of providing passenger transport services. The drivers are engaged to deliver those services, and a passenger could not reasonably be expected to think they were contracting with the driver when they got into the car
- Uber exercises very close control over every aspect of the drivers' delivery of its passenger transport services, including, how they perform their role, use the app and polices their behaviour
- While the drivers are not integrated in the traditional sense (ie that they must attend its premises, wear uniforms and submit to human resources supervision), they are integrated in a more substantive sense as the face of Uber's business
- The drivers do not have control over the quantity and quality of the work they receive or the amount they are paid, and they do not have the ability to build goodwill, all of which indicates they are not in business on their own account.
These factors outweighed indicators of contractor status, such as vehicle ownership and flexible hours.
Comment
The Supreme Court confirmed that the legal principles decided in its previous decision in Bryson v Three Foot Six Ltd from 2005 were correct, and the traditional common law tests (control, integration and the fundamental test) remained important determinants of employee status. This analysis still also involves examining any statements of intention by the parties (usually the written contract) but the weight to be given to intention, and to the other tests, will depend on the circumstances of each case (as Uber found out the hard way).
For advice about how best to ensure that independent contracts are recognised as independent contracts and not employment relationships, or about any employment matters, please contact a member of our employment team.
Co-authored by Michelle McLean (senior solicitor) and Tariel Lamb (solicitor).
