The End of an Era? Tech and Workers Rights.

What Uber did Next…

Stop press, hold the front-page Uber does deal with the GMB union.

As I finish proofing this article the news comes in about the epoch-making (not my phrase, borrowed from the press) deal with a ground transport provider…. Obviously except for the recognition deals with good old Tristar or maybe except for their deal with a large SW private hire company that I was involved in over 10 years ago, or maybe except for the Hermes deal, or except for the other recognition deals that have happened over the years….  Oh, maybe not quite so epoch making then. 

So, what is the truth in the hype. You certainly won’t get it from reading ‘outside of the trade’ press. 

Forget Ye Not….

Not necessarily the hero to any operators but let’s remember that the two ‘Uber drivers’, James Farrar and Yaseen Asleem, Now known as The ACDU (App Drivers & Couriers Union), originally were the ones that took Uber to an employment tribunal. 

I believe that the unions would happily have aimed for full driver employment in order to be able to recruit and represent them to claim the benefits they believed they were entitled to.

However, they managed to push for worker status to disprove self-employment.  As we all know they were successful, and many thought at the time, that was the end of the matter. The appeal was then dismissed all the way up to the highest court in the land – The Supreme Court. I am however still pointing out to all of the excited ‘pundits’, this was a supreme court ruling on a tribunal decision, not some new law. Regardless of any press release to the contrary, what we do know is that to-date, a small group of Uber drivers are now classified as workers. However, now we see the politicking. 

Originally, straight after the dismissal of The Supreme Court appeal, Uber sent a message to every driver’s screen. It said, ‘Today we learned that our case was not successful and a small number of drivers from 2016 should have been classified as workers, but this judgment does not apply to drivers who earn on the app today’.

At first, Uber seemed not to worry about the implications of the trouble that they were in. Far from admitting defeat, as I said, Uber’s leadership highlighted that the judgement in truth was ‘just for that small grou’p.  However, the media ground swell had other ideas, the blood was in the water and the press sharks were closing in. Suddenly everyone seemed to become aware of the company’s public image. 

Uber did their complete 360 degree about turn in March this year.  Uber boss Dara Khosrowshahi published in the Evening Standard. Announcing that drivers will now receive holiday pay, pension contributions and the National Living Wage. And a little time after  the newly found Uber Workers Rights version was  the alliance with the union. So, union recognition, although interestingly not with the union that was there for the tribunal endgame, The ACDU.

I was also expecting HMRC to get brave on the back of this and look to take this opportunity for their ‘Big Score’. They haven’t so far, but in my opinion, they risk losing credibility. Focusing on squeezing the little guy instead of going after Big Tech. If HMRC can get Uber to cough up, then drivers will have more confidence claiming against the tech behemoth. 

So, Was There a Downside To The Win?

Let’s Look at What Aren’t Workers Entitled To? 

Statutory Sick Pay (SSP) is an employment right, not a right of workers. As a result, Uber drivers are not entitled to sick pay. Even while classed as workers, Uber drivers are still paid gross (and still have to do a tax return). Outside of the employed PAYE system, there is no secondary contributor to pay Class 1 National Insurance Contributions. Without a secondary contributor, drivers are not entitled to Statutory Sick Pay. 

In their declaration of a ‘willingness to change’, Uber I believe  gave the bare minimum that comes with their drivers being classed as workers. As mentioned above, this didn’t even include payment for time spent on the app without a ride – something that Lord Leggatt specifically outlined. 

Time Is Money. So, drivers are now supposedly entitled to money whether they pick up a rider or not. 

Lord Leggatt’s judgment outlined that ‘working time’ wasn’t limited to trips only, as Uber has argued, but any time the driver is logged into the app and ready to accept trips. This, one of the most significant parts of The Supreme Court’s ruling, which was absent from Uber’s  announcement. There may even be a need for The ADCU to take Uber back to court for clarification.

The decision may have ‘wider consequences for the gig economy’. Supposedly now, any time a gig worker waits, is time they are entitled to the National Minimum Wage. Apps like Uber and Deliveroo depend on having 1000s of workers unpaid on standby, waiting to pick up jobs. Is this reflected in the private hire model.

David Harmer of Markel Tax pointed to the drivers’ subordination to Uber, which resembles the ‘dependent contractor’ outlined in Matthew Taylor’s 2017  Review. Uber’s structure only allows drivers to increase earnings by working more jobs, which drivers are less likely to do if waiting time were paid. 

Anyone Else….

Addison Lee’s appeal against drivers being classed as workers got stopped dead in its tracks. The judge cited Uber’s failure at The Supreme Court as evidence of the pointlessness of taking their appeal any further. 

Addison Lee has been strangely tarred by the courts’ same brush.  A big London private hire firm admittedly with a corporate face that you wouldn’t associate with tech companies.  However, it turns out that according to the tribunal judge, they engage drivers in a somewhat similar way to their Silicon Valley counterparts. Addison Lee would have presumably, if allowed to continue followed Uber’s path to The Court of Appeals and finally to The Supreme Court. 

Addison Lee is, by most definitions, a ‘traditional’ private hire company. However, the court case still centred around their use of an app. OK, AddiLee has had their application for appeal dismissed, however Just like with the Uber case, it should be mentioned that compensation will only be given if other drivers take action to bring a claim. 

I believe they may offer a solution to drivers similar to the landmark ‘employment plus’ offered by Hermes. With the GMB and Uber’s compromise maybe even union recognition? The sentiment from the Uber drivers responsible for the original claim was happiness and victory, but time will tell how many drivers will actually collect.

Will These Decisions Transform The Gig Economy

Even the Supreme Court can’t change the life of a gig worker. 

Charlie Thompson, employment partner at Stewarts Law, believes that little will actually change. 

‘Other gig economy businesses and workers will take notice, and we may see a spike in claims, but because every employment case is decided on its own facts, we will still see arguments that all business shouldn’t be treated like Uber’. Two gig economy businesses are never the same, with the technology commonly the differentiating factor, even if drivers or users obtain jobs in the same way. 

In the end, the judgements amount to the three things: holiday pay, pension contributions and National Living Wage. Uber may not even bear the brunt of these added costs. When New York City’s minimum wage law came into effect in 2019, Uber simply raised its prices in the city to remain profitable. 

You may have realised by now that my opinion is that that even though this is a big deal in terms of lineage in the press, it remains to be seen whether HMRC or employment tribunals will come to collect from private hire.

We know that all cases which might come before Tribunals, will need to be forensically examined based on the specifics of their own contracts and working practices. Even after Ubers announcement, we still don’t have a definitive legal answer to what constitutes working hours to allow us to set a minimum wage in this case. A tribunal does not create law, just something to be ‘considered’ for the next tribunal.

What Uber had were complicated and unclear working practices hidden behind lots of tech talk and weighty legalese. The point is nothing has really changed advice wise. I have always said that a standard templated contract which does not reflect reality, will not protect businesses from employment status and worker status claims.

Your contract terms, media, contractor handbooks or training manuals for subcontractors as well as your day-to-day working practices must be considered as a whole to establish whether your subcontractors can legitimately be seen as self-employed.