On 17 November 2025, in a majority decision, the Supreme Court unanimously dismissed Uber’s appeal, confirming that the four Uber drivers who brought the proceedings were employees, not independent contractors. This brings an end to this dispute which has been ongoing since 2021, and in which Uber has now been unsuccessful in each of the relevant Courts.
Importantly, in reaching its decision the Supreme Court has reaffirmed the existing legal tests for determining whether someone is an employee or a contractor. There has been no change in this respect. The Court is imposed with the duty of establishing the real nature of the parties’ relationship which will override any contract which was entered into by the parties. This includes looking at intention, control, integration and “economic reality”.
Despite Uber’s terms and conditions describing their relationship as one of company and contractor, the Court meticulously dissected the language of the document. It was evident that the agreement was drafted in the manner of a “take it or leave it document”, essentially prohibiting negotiation of its terms and disguising the reality of the parties’ relationship. The Supreme Court, therefore, concurred with the Court of Appeal that the contractual terms were “fictional” as they failed to reflect how the actual relationship between Uber and its drivers operated in practice.
The Supreme Court noted that a passenger could not reasonably be expected to think they were contracting with the driver when they get into the car. They ordered the service from Uber and agreed to pay Uber for it. The Supreme Court agreed with the Court of Appeal that Uber’s contracts were “window-dressing.” This means that the contracts were designed to give the appearance of a different relationship than the one that actually exists, to the extent that it asserts that Uber is a mere facilitator of transport services between drivers and users. The Supreme Court held this is not the true relationship nor what unfolds in practice.
The Supreme Court also agreed with the Court of Appeal that Uber exercised very close control over the Uber Drivers delivery of their services, particularly through controlling how the drivers performed, their route selection, their performance, their policies, their behaviour, the fare prices, the terms and services, complaints and refunds, as well as the rating system. Drivers lack control over the quantity and quality of work, the price they are paid for their services and their inability to build goodwill, despite being the face of Uber’s business and having a relationship of co-dependency with Uber and its Drivers.
The decision highlights that when determining employment status, the assessment is very much fact-specific. We also note that the Supreme Court decision comes as the Government is separately proposing its Employment Relations Amendment Bill. This would specifically exclude workers from claiming that they were an employee if they have signed a written agreement confirming they are an independent contractor. The Select Committee is due to report back to Parliament on this next month.
If you have any questions regarding this decision and what it may mean for your business, please reach out to one of our employment team members.
Jeremy Sparrow
Tauranga
tel:+6479272758
mailto:jeremy.sparrow@hobec.co.nz
Sophie Law
Tauranga
tel:+6475700680
mailto:sophie.law@hobec.co.nz
Caitlin Booth
Tauranga
tel:+6479272757
mailto:caitlin.booth@hobec.co.nz
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Employment Law for Kiwifruit Growers
Free Employment Law Workshop for Kiwifruit Growers
Join our expert employment lawyers Jeremy Sparrow and Sophie Law for a free, informative session designed specifically to assist kiwifruit growers to best manage workforces and navigate the complexities of employment law.
Drinks and nibbles included.
Tuesday 18 November 2025
From 5:00pm for a 5:30pm start
Holland Beckett
Level 2, Northern Quarter, 45 The Strand, Tauranga
We will share insights on topics including:
Different types of employment for seasonal workers
Using piece rates correctly
Holidays Act compliance & managing public holidays
90-day trial periods
Restructuring permanent roles
Addressing performance and disciplinary issues
Q&A
Please RSVP by Friday 14 November to Karla Sweeney karla.sweeney@hobec.co.nz
Congratulations to our new Senior Associates
We are delighted to announce the promotion of five lawyers to Senior Associate in our Tauranga team.
Partner John Mackay shares, ‘These promotions are testament to the quality of our lawyers and the continued growth of the firm. Holland Beckett now has over 70 lawyers across our Bay of Plenty offices and providing them with career progression and development is a key priority for us. These promotions over several key practice areas strengthen the leadership, capability and depth of our teams.’
Bridget Bailey – Resource Management
Bridget advises on all aspects of resource management and local government law, with a particular focus on consenting infrastructure and renewable electricity projects under the RMA and fast-track processes. Bridget provides pragmatic and strategic advice to public and private clients and has appeared in the Environment Court, High Court and local authority proceedings, as well as being appointed as Chair of an expert consenting panel under the Covid-19 fast track legislation.
Bridget is a member of the Auckland District Law Society Environmental and Resource Management Law Committee and the RMLA. She is also a committee member Mount Maunganui Playcentre.
Bridget first joined the firm 2012. In 2020 she spent 3 years as in-house legal counsel for Bay of Plenty Regional Council. She rejoined Holland Beckett in June 2023.
Hester Sutherland-Stacey – Property and Commercial
Hester provides expert advice for developers, companies and individuals, with a focus on commercial property development. She advises on a range of property and commercial matters such as acquisitions and disposals of land and businesses; leasing; ownership structures; financing arrangements; and a range of commercial matters including terms of trade, construction contracts and service contracts. She also advises on all residential property matters from family homes to large scale subdivisions.
Hester began her legal career working in employment law, civil and regulatory litigation. She joined Holland Beckett as a Solicitor in 2014 in the employment and civil litigation team, before transitioning into property and commercial law. Practicing in these areas provided a strong foundation in legal processes and the practical realities for people and business entities.
Hester is a board member of ADAPT (Assisting Different Abilities Peoples Trust).
Sophie Law – Employment and Family
Sophie advises on a broad range of employment law matters, both contentious and non-contentious. Sophie has particular experience advising on personal grievance claims, disciplinary and performance processes, restructures, negotiated exits, employee investigations, and Holidays Act compliance issues. This includes assisting clients with representation in dispute resolution processes such as mediation and the Employment Relations Authority.
Sophie also assists employer clients to implement proper and thorough processes and is focussed on upskilling clients through delivering bespoke training workshops.
To complement her expertise in employment law, Sophie also works alongside our family law team advising on relationship property matters.
Sophie began her legal career in London, including time at Magic Circle firm Slaughter and May. She joined Holland Beckett as a Solicitor in 2018.
Sophie is a Trustee of He Kaupapa Kotahitanga Charitable Trust (HKKT).
Jessica Fitzgerald – Corporate
Jess has significant experience in a range of complex corporate matters including M&A, private equity, commercial contracts, corporate governance, and general corporate advice/structuring. She provides pragmatic results focused advice for corporate clients as well as small to medium sized businesses. She is a key team member for the firm\'s corporate clients, including Port of Tauranga, Robotics Plus and Oriens Capital.
Jess first joined Holland Beckett in 2013, before moving to Vancouver, Canada, in 2016 where she worked in-house at a technology start-up primarily advising on the re-capitalisation of the company and technology contracts. Jess rejoined Holland Beckett in late 2018.
Rachel Withington – Property and Commercial
Rachel is an experienced property and commercial lawyer, working with private clients and their related entries across all facets of property and commercial law.
A multi-disciplinary lawyer, Rachel has expertise is residential conveyancing, along with commercial, rural and horticultural conveyancing and leasing. She advises on asset protection including trust establishment, trust management and trust wind ups, and estate and succession planning. She also advises in elder law, including occupation right agreements, residential care subsidies and loans, reverse mortgages and enduring powers of attorney.
Rachel advises commercial clients on sale and purchase of businesses, share sale and purchases, shareholders agreements and has specialist experience acting for Foodstuffs Members on the purchase and sale of New World, Four Square and PAK\'nSAVE stores throughout the country.
Rachel began her legal career at Cooney Lees Morgan in 2014 where she worked for over 9 years, before joining Holland Beckett in early 2024.
These promotions further strengthen the capabilities of Holland Beckett’s full-service team, which is set to move into new offices in October due to the growth of the firm.
Big changes for employment law – Employment Relations Amendment Bill
This article was published for the Bay of Plenty Times, 7 July 2025.
Significant changes to employment law are one step closer, with the Government introducing the Employment Relations Amendment Bill to Parliament on 17 June 2025.
This Bill sets out the changes flagged by the Government earlier this year, and provides further detail as to how those changes will work. The Bill still needs to go through the Select Committee stage and various readings in Parliament before it becomes law, so there is potential for some details to change, but the core aspects are likely to remain the same. If passed, the Bill would significantly rebalance key areas of employment law in favour of employers.
The proposed “contractor gateway” test would introduce a new test for determining whether a worker is an employee or a contractor.
A number of criteria will need to be met, and if they are, then the worker will be automatically deemed to be a contractor. However, it is unclear whether many businesses who engage contractors will be able to meet these criteria. In particular, the relevant contractor cannot be restricted from working for other businesses, except while performing work for the principal business. It is common for businesses to want to restrict working for others where a conflict of interest could arise, e.g. the contractor providing services for a competitor at the same time. Further, the business can’t require the contractor to work particular hours, unless it permits the contractor to sub-contract the work. Where businesses have engaged a particular individual to perform the work, they are likely to be reluctant to allow another individual to step into the contractor’s shoes. If only a limited number of businesses can meet the test, then the changes may do little to achieve the Government’s goal of greater certainty around contractor status. If a business can’t meet the new test, the current “real nature of the relationship” test will apply, which is very fact-specific and involves a greater degree of subjectivity.
The Bill also targets remedies for personal grievances, aiming to reduce or even remove remedies where the employee has themselves behaved poorly.
If an employee’s behaviour has contributed to the situation then they will not be eligible for reinstatement or distress compensation, but other remedies, e.g. reimbursement of lost wages, may still be available. However, any remedies may be reduced by up to 100% depending on how bad the behaviour was. If the behaviour rises to the level of serious misconduct the employee will not be entitled to any remedies at all. This latter position could have unintended consequences, as it may incentivise employers to dispense with complying with their fair process obligations prior to dismissal where the employer is comfortable the employee has committed serious misconduct. A penalty may be available for breach of the good faith duty in such circumstances, but penalties tend to be at a far lower level than other remedies. We may also see an increase in creative claims seeking damages for breach of implied terms of employment agreements, in lieu of personal grievance remedies being available.
The annual income threshold above which an employee will lose the statutory right to raise an unjustified dismissal personal grievance has also been confirmed to be $180,000, although this will be adjusted yearly in line with changes to average earnings.
This figure includes the employee’s base salary/wages, but does not include any other forms of remuneration such as bonus payments. Employers and employees may agree to opt back into the statutory dismissal grievance regime, or alternatively can agree their own arrangements around termination of employment. The Bill has clarified that by default an employee would also not be able to bring any “other legal proceedings” in respect of a dismissal, meaning alternative claims e.g. an unjustified disadvantage personal grievance, or breach of employment agreement claim, would also be barred. If the Bill is passed, the change will apply to new employment agreements, but employees on existing employment agreements will have a 12-month transition period to allow them to negotiate with their employer regarding the arrangements around termination of employment. We expect that most employers will not want to opt back into the statutory dismissal grievance regime, but in return senior employees are likely to want greater contractual protections against the impacts of a sudden dismissal, e.g. pre-agreed severance payments, longer notice periods, etc.
Finally, the Bill contains a number of other more minor changes, including to the way that the Employment Relations Authority or court approach the “test of justification”, which is the central test in determining whether an employee has a valid personal grievance. A key change is that in applying the test, the Authority or court will be required to consider whether the employee obstructed the employer from following a fair process prior to taking an action (e.g. dismissal).
Businesses, employees and contractors should keep an eye on the Bill’s progress, and if the changes are passed, seek advice on the implications for their employment or contractor relationships.