Uber’s Supreme Court Decision. What Happens Now?
As the real-world problems of working people are brought into the legal realm, the ‘disruptive technology’ company has made sure to avoid and deny. For a company supposedly like no other, they have dealt with this ‘like no other’.
At first, they ‘seemed’ not to understand the scale and implications of the trouble that they were in. Far from admitting defeat, Uber’s leadership highlighted that the judgement was based on a small group of drivers that acted in 2016. Most of us watching knew that although true, the ramifications of this would stretch further.
A couple of weeks ago, Uber did a complete 360-degree turn. Alongside a call for all other gig economy companies to do the same.
Uber boss Dara Khosrowshahi published an article in the Evening Standard. He announced that drivers will now receive holiday pay, pension contributions and the National Living Wage.
Here is what this means for Uber, their drivers, and the gig economy at large.
Drivers are now entitled to money whether they pick up a passenger or not.
However, will they need to lawyer-up to get it?
Lord Leggatt’s judgment outlined that ‘working time’ was not 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, was absent from Uber’s most recent announcement.
Boss of the TUC union body, Frances O’Grady, accused Uber of “cherry-picking” from the ruling, which said Uber should consider its drivers as workers from the time they logged onto the app.
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’.
Statutory Sick Pay (SSP) is an employment right, not a right of workers. As a result, Uber drivers are not entitled to sick pay.
In their noble declaration of a ‘willingness to change’, Uber simply gave the bare minimum that comes with their drivers being classed as workers. As mentioned above, this did not even include payment for time spent on the app without a ride – something that Lord Leggatt specifically outlined.
Even while classed as workers, Uber drivers are paid gross. 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 or other related payments like Statutory Maternity Pay.
To give sick pay, Uber would have to change not only their driver’s employment law status but also their tax status too. Without this benefit, Uber drivers will have to rely on Maternity Allowance or Employment and Support Allowance from the government.
Do drivers working for multiple apps provide a get-out clause for Uber?
There are two possible ways for courts to consider multi apping waiting time.
- you pro rate the working time between the employers you are standing by with
- you rule that if you are standing by for two you cannot be a worker at that time.
Industry consultant and expert Dr Mike Galvin, who consults for Uber competitor Bolt, had this to say: ‘It’s not mission impossible to work out how to apportion waiting time among companies, but it’s pretty clear that a driver with three or four apps on the go is definitely an entrepreneur, not a dependent contractor.’
It is a valid and interesting point. Much of Uber’s emphasis in their public statements have been on the ‘flexibility’ that the platform gives drivers. They claimed that after carrying out a survey, only 20% ‘wanted more protection if it meant a loss of flexibility.’ That sounds like Uber spin – a convenient truth that ignores the thousands of full-time drivers who are treated as expendable and left without employment or workers’ rights. However, as Dr Galvin points out, things do not seem as straightforward with the presence of multiple apps.
That being said, drivers registered with multiple apps are not doing so to enjoy life as a high-flying businessman. They are looking to pay the bills, and so hedge their bets on several apps to get enough work. The money earned is not the income associated with an entrepreneur, especially seeing as more money is only achieved by taking on more trips.
‘Flexibility’, which is a genuine benefit nauseatingly inflated by Uber, is less critical than employment protections for people working full-time in the gig economy. Part-time workers using multiple apps are likely to enjoy the flexibility, but full-time app users may well be the ‘subordinate’ and ‘dependent’ workers that Lord Leggatt’s judgement is protecting.
So here is the big BUT. Is this relevant to one big app or will this affect the private hire industry. A lot has to do with operator relationships and the genuine working practice of driver in the traditional operator sub-contracting role. Watch this space for our article on ‘Workers Rights and Good Practice’ How to survive and thrive in the gig economy.
Drive Safe
Gary
