...winning workers’ rights
Described as a “monumental victory”, drivers working for Uber have won the right to be recognised as workers.
In a landmark ruling by an Employment Tribunal, Uber’s workers could now be set to benefit from employment rights that they are not currently granted, such as holiday and sick pay, access to the national living wage, and paid breaks.
The case is, however, far from over yet, as the firm representing the drivers recently released a statement confirming that they believe the judgement applies to all 19 drivers who originally brought the case against Uber.
Even though only a tiny fraction of Uber’s 40,000 drivers initiated this case, the firm is also suggesting that the judge’s findings should be applied to all of its drivers.
Although not binding on other tribunals, this decision is likely to be very persuasive, being detailed and well-reasoned and the arguments on both sides having been fully rehearsed by leading counsel.
Fighting a gig economy
According to Frank Field, chairman of the work and pensions select committee, the Tribunal’s decision has the potential to “ricochet through the whole gig economy – including for workers on zero hours contracts.”
The so-called gig economy has been on the rise in the UK, with more and more individuals taking up short-term jobs for different employers, rather than having fixed terms of employment.
Uber isn’t the only company to be seen as operating as part of this economy and facing legal action by its staff. Other companies operating on a similar business model – such as Deliveroo and Hermes – are being challenged by staff who believe they should be given more employment rights.
Worker/employee/self-employed – what’s the difference?
As Uber claims that its drivers as self-employed – and not workers or employees – the drivers in England and Wales currently don’t have access to basic workers’ rights. According to lawyers representing the 2 drivers – James Fararr and Yaseen Aslam – they were under “tremendous pressure” to work long hours and if they rejected jobs there would be “repercussions”.
One of the drivers even told judges that he earned a mere £5.03 an hour last year after expenses – a far cry from the £7.20 national living wage that was introduced in April.
Under the Employment Rights Act, only individuals working under a contract of employment – meaning a contract of service where the employer is obliged to provide work and the employee is obliged to do that work – are employees, but an individual who does not is still a ‘worker’ if he or she:
- works under another kind of contract,
- under which he or she undertakes to do or perform personally any work or services for the other person who is a party to the contract,
- and that other person is not a client, or
- customer of the business being carried out by the individual.
Accusing Uber of using “twisted language and brand new terminology” in its terms for workers, the judge refuted claims that Uber’s drivers were self-employed and found that they were in fact workers.
The Tribunal found that any Uber driver who has the app turned on, is within the territory in which they’re authorised to work, and is able and willing to accept assignments is a worker.
This is on the basis that the driver meets all of these conditions and is working for the entire period of time, even whilst they’re waiting for a trip.
After analysing the facts of the case, the Tribunal was able to reach this conclusion as:
- the drivers undertake to provide their work personally;
- the drivers provide work for Uber;
- the drivers provide the work under a contract with Uber (and not with their passengers); and
- Uber is not a client or a customer of a business carried on by the driver.
This means that they’ll now have access to the following employment rights:
- Access to the National Minimum Wage (NMW) and national living wage
- 6 weeks’ paid annual leave
- A maximum working week of 48 hours, along with breaks where they can rest
- Protection against whistleblowing
“A great victory for mini cab drivers”
As well as praising the GMB’s role in the case, Frances O’Grady, general secretary for the TUC, highlighted how the “dark side” of the UK’s labour market had been exposed.
“What is happening at Uber is just the tip of the iceberg. Lots of people are now trapped in insecure jobs, with low pay and no voice at work.”
“We need the government to get tough on sham self-employment…and it must recognise the important role trade unions play in ending precarious working.”
James Fararr, one of the drivers involved in the case, described the outcome as:
“A great victory for mini cab drivers. It has been a rotten trade for a long time. But the exploitation since Uber came to the market has been supercharged.”
Unhappy with the Tribunal’s decision, Uber has said that it plans to appeal the case and is even willing to take it as far as the Court of Appeal and the Supreme Court.
But, Uber might regret the decision to challenge the findings if it loses the case again. The firm representing the drivers has suggested that if Uber were to lose its case it would have to change the contracts for all of its drivers.
Simpson Millar’s trade union and employee rights Partner, Joy Drummond, comments:
“This ruling is undeniably capable of breaking new ground. The Tribunal found Uber’s arguments could be disregarded as they did not correspond with the reality of the arrangement and recognised that the problem stems, at least in part, from the unequal bargaining positions of the worker and the employer.”
“This unequal bargaining power is the reason why membership of a trade union is vital for these and other workers and employees. Given the huge costs involved, it is very unlikely that the law would have been clarified in this way were it not for the support of a union; in this case the GMB.”
“At Simpson Millar, we recommend that all employees whose working arrangements are determined by someone more powerful than they are should join a trade union.”
“Some commentators have suggested that Uber drivers should not be classified as workers for fear that this would drive Uber out of business and replace it with a more hidden employer who treats its drivers worse and does fewer checks on them, therefore providing less protection for passengers.”
“This is a dangerous argument based on the assumption that it is not possible to apply the law to some kinds of unscrupulous employers, which has very troubling and wide implications. The answer is not to accept the poor work practices of employers ‘under the radar’ who treat their workers badly. It is to devote greater resources to identifying such employers and to making sure their workers are able to enforce their rights.”
“If you need legal advice on any of the issues raised by this decision or want to know how this could affect you, we can help find the best solution for you.”
Written by Joy Drummond.
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