Uber, employment rights and the gig economy

On Friday of last week, it was held in the employment tribunal that two Uber drivers were not self-employed on their own account (as Uber claim) but were in fact workers.

A quick summary if you are new to the subject…… there are essentially three broad ways in which you can be categorised when it comes to work.  You are self-employed and doing it all by yourself – and you therefore have no employment rights at all.  You are an employee; on the payroll and the recipient of a whole host of employment rights including the right not to be unfairly dismissed, or finally you are a worker – and you therefore have some rights such as, crucially, the right to be paid the minimum wage and the right to rest breaks under the Working Time Regulations.

This might all sound like a legal technicality, and it often is.  But an important one if you want to ensure you have any employment rights at all.

The judgement itself was no real surprise.  Whether someone is considered an employee, a worker or self-employed has been the subject of plenty of case law over the years, and the tests are fairly well established.  There are several factors considered when determining employment status, but control is a big factor in the decision.  To what extent is the individual concerned truly in control of their own work or instead in the control of the organisation?  Who controls the work given?  Can the work be turned down? Who issues the actual work instruction? How closely is it managed? Can you send someone else to do the work? Who do you ring if you are too sick to work? Do you turn up in your own clothes or do you have to wear a company uniform? What happens in practice rather than what is said to be done in a written agreement?

On this basis, and when you look at how Uber operates in practice, the decision that these two individuals are workers is a straightforward one.  They set the rates, they operate what is effectively a system of discipline and penalties, and there is a whole host of rules about how the drivers must operate.

Uber is often held up as an example of innovation.  Of the new digital world.  New ways of working.  It is business conference fodder.  But what of those working within it day to day?

There is much talk of the so-called ‘gig economy’.  The notion that more and more people are, for a whole range of reasons, not engaging in the Monday to Friday 9-5 full time employment thing, but instead are taking short term ‘gigs’.  Self-employment, day rate work, one piece of work at a time – whether that is one cab ride or a day of HR consultancy.  But of course the gig economy also includes those who are on zero-hours contracts.  Waiting for a call from the temp agency.  Wondering where the next few hours of work are coming from.

The gig economy comes complete with urban myths built in.  That those engaged within it are hanging out in hipster coffee shops, enjoying a better work life balance than the rest of us who are sticking safely to the regular pay cheque.

It is true that most people make a choice to be involved in the gig economy.  Sometimes that choice is about freedom, work life balance, being your own boss.  Flexibility.  And sometimes it is a choice between that or not working at all.

The legal challenge to the Uber model is far from over. Leave to appeal has already been granted and this one will run and run.   What we do know is that more challenges of the Uber nature are inevitable.  There are plenty of other organisations operating similar models of work. It is estimated that nearly 30% of people are now engaged, somehow, in the gig economy – a figure that is predicted to rise even higher.  Technology is increasingly allowing people and work to be put together in the moment.   Technology leads and the labour market follows.

There is a dark side to the gig economy.  Where those engaged within it have no power and no choice and even fewer employment rights.  As has ever been the case, the labour market is two-tiered.  There are the haves and the have nots – including the have nots of employment rights.  We should increasingly expect those engaged within it to challenge accordingly.

And as for Uber et al, as a consumer, I want to use the technology. I want the convenience. But I’d also like those for whom it provides work to have some employment rights too. Wouldn’t we all?

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