TfL wins appeal over imposition of voice contact requirement on Uber

May 29, 2018

Transport for London has won an appeal over its imposition of a ‘voice contact requirement’ on Uber.

Mr Justice Mitting had previously allowed a judicial review application by Uber and others and quashed Regulation 9(11) of the Private Hire Vehicles (London) (Operators' Licences) Regulations 2000.

TfL’s appeal in Uber London Ltd & Ors, R (on the application of) v Transport for London [2018] EWCA Civ 1213 concerned whether the High Court judge was correct to conclude that the imposition by TfL of a requirement on PHV operators in London to provide a "listening" service to the passenger for whom a booking had been made, which was to be available at all times during the operator's hours of business (and at all times during a journey), and in respect of any matter (referred to as "the voice contact requirement") constituted a disproportionate interference with the rights to freedom of establishment of PHV operators, contrary to Articles 49 and 54 of the Treaty on the Functioning of the European Union.

The judge concluded that TfL had failed to show that other less restrictive measures would not meet the level of protection required for the only public interest - passenger convenience - which he identified was at stake. Consequently, he quashed the voice contact requirement and left it to the TfL Commissioner to reconsider an emergency telephone alternative.

In the same judgment the judge dismissed Uber's and the other claimants' claim to challenge an English language requirement. On 12 February 2018, Uber's appeal against the part of the judge's order that upheld that requirement was withdrawn by consent.

Prior to the Court of Appeal hearing, Uber introduced a new "click-to-call" function that went some way to fulfilling the voice contact requirement, but the company accepted that it was not fully compliant.

Lady Justice Gloster, who gave the judgment of the Court of Appeal, found that:

The judge had no evidence before him as to whether the emergency telephone alternative was actually practicable. “I consider he erred by substituting his view for that of the regulator and suggesting a ‘less intrusive alternative’ that was not fully considered.”
The judge's emergency telephone alternative constituted a regulatory requirement, which TfL, as the regulator, would have had some difficulty applying and monitoring. TfL was entitled to conclude that it was not practicable.
The voice contact requirement achieved a number of public safety, equality and customer convenience benefits, which the emergency telephone alternative did not achieve “to the same extent, and in some cases, at all”.
Having accepted TfL's case that it was necessary and proportionate to require operators to provide a voice contact facility in the case of genuine emergencies, the judge should not have quashed the voice contact requirement. “He erred in relying on the distinction between an emergency and a non-emergency contact facility.”
The judge erred by substituting his own view for that of TfL, as to the appropriate level of protection for customers in a non-emergency situation. “In doing so, he failed to accord TfL a proper margin of appreciation in this area.”
The emergency telephone alternative was not a less restrictive alternative. The system proposed by TfL achieved a higher level of protection and also achieved further legitimate objectives, beyond safety or consumer protection in a non-emergency situation, which the judge did not properly consider. He put the emergency telephone alternative forward as a less intrusive means of achieving the same objectives. “For it to be less intrusive, it had to be just as effective. It was not.”
There was a problem with the judge's failure to provide context for his finding that the costs imposed by the voice contact requirement were significant. The burden imposed on Uber was nil – as it had indicated that it would pass these on – and on its customers was very low.
The costs imposed on operators other than Uber as a result of compliance with voice contact requirement were not disproportionate.
TfL came to a conclusion to which it was entitled, namely that despite the impacts [such as on small operators], the need for passengers to be able to speak to an operator at all times during their journey was an important public safety issue.
The costs imposed on all PHV operators were fully considered by TfL and were not disproportionate to the public safety, equality and customer convenience benefits.
It was not unlawful that TfL had not imposed a similar requirement on taxis.