This morning’s Supreme Court judgment that workers employed by Uber are, in fact, workers rather than people operating on an entirely bogus self-employed basis is welcome. Uber has been getting away with this kind of regulatory arbitrage for too long and the unions – both mainstream (GMB) and grassroots (the app drivers union) – as well as the officers and representatives, and members, responsible for bringing it to the very top of the UK court system deserve praise and congratulations.
The simple lesson is that unions work – do join one.
The Supreme Court ruled that Uber drivers are workers because:
- Uber sets the fares and the drivers have no say
- the contractual terms under which they work are dictated by Uber
- while drivers are free to log in and out of the app as they choose, their choice of whether to accept rides is constrained by Uber
- Uber exercises a significant degree of control over how drivers offer their services via specifying age, colour and condition of their car; as well as the route they need to take to carry the passenger. The approval ratings system also has something to say here, too
- Uber restricts communication between passenger and driver to the minimum necessary to perform the trip; Uber handles all the co-ordination between driver and passenger.
As a consequence of these facts, the Supreme Court agreed with the conclusion of the original employment tribunal that Uber drivers were ‘workers’. The Supreme Court also ruled that Uber drivers were working whenever they were logged in not, as Uber had argued, whenever they accepted a trip request. This important finding in relation to the operation of the working time regulations means that Uber drivers are entitled to the minimum wage in respect of periods when they are logged-in to the app but not engaged on trips. Uber, while now licking its wounds, is clearly thinking about what to do next.
The UK court decision came shortly after a Dutch court decision ruling earlier this week (in Dutch) that employees there of Deliveroo, the courier-based food delivery operator, were also employees on the grounds of the control to which they were subject while at work administered through the (in)famous company algorithm which allocates tasks and which controls ‘the line’ between the production of food and the couriers bringing it to customers’ front doors.
It’s also an important tribute to the work of the UK court system – the lower level specialist courts (the employment tribunal and the Employment Appeal Tribunal) got this decision entirely right, as did the Court of Appeal. Uber has lost at each of the four stages of the UK court system, and all three of the appeals (on how each lower court had applied the law) that it was permitted to make. The decision of the UK court system is, as a result, entirely clear – and this will be important in the future.
This is indeed welcome news for a Friday – but, on Saturday, the hard work comes.
Firstly, the UK court decision is that Uber drivers are ‘workers’ – a slightly strange ‘halfway house’ in UK law which distinguishes between employees on the one hand and self-employed people on the other and, in the middle, the self-employed who are offering their services as part of a business carried on by others. The ACAS website has a helpful summary of the differences between the different classes but, essentially, while ‘workers’ are entitled to some rights of employment, they are not entitled to all and, importantly, they are excluded from unfair dismissal laws, from protection against redundancy and from paid sick leave and parental leave. Furthermore, those employed on zero hours contracts, working ‘as and when’, are frequently classed as ‘workers’. Those gaps (still) need closing.
Secondly, as my colleague Steve Jary, National Secretary for aviation and defence for Prospect, tweeted this morning: the absence of the long-awaited Employment Bill on workers’ rights after Brexit may now be shortened and may well include a clause reversing this judgment. Court decisions are an important source of protection when it comes to rights – but they are only ever interpretations: statute law always comes first and will set aside court judgments. We know that the Director of Labour Market Enforcement Strategy – a government office in charge of investigating compliance with labour market laws, chiefly in connection with the informal economy – is already suggesting action on app-based businesses, which gives a direct feed into whatever the government intends to do about this. We can expect the government to be taking an interest not least because one of the stated reasons for Brexit is that the EU’s regulatory approach is ‘too precautionary’ (£) and that, not least in new economy sectors, businesses need to be ‘set free’ from regulation to innovate further. This is where the clarity of the Supreme Court judgment is really important – there is no ‘confusion’ here for which legislation is necessary in order ‘to clarify’.
Furthermore, Prop 22, a pro-platform ‘gig economy’ law which was consulted on in California in last November’s US elections was passed with support from Uber, Lyft and other platforms in a campaign costing them collectively north of $200m. The venture capitalists funding these platforms – which are perennial eaters of money – have deep pockets in pursuit of monopoly rents and we can now expect similarly intensive, and expensive, lobbying efforts to be made here too to ensure the Employment Bill reverses the decision. Uber will come out of this fighting – and the other platforms will join it.
Thirdly, platform companies are at the forefront of a ‘new world of work’ in which their workers are the guinea pigs. What working conditions are ‘enjoyed’ by platform workers today will, over time, become the new standard for workers in conventional companies elsewhere. This is not only a question of legislation but active defence and pushback in practice. Aspects of working life through the pandemic – with greater use of surveillance software on computers to check what workers are doing while working at home – is one aspect of this while another is to ensure that there is a ‘right to disconnect’ – a right to downtime and non-work time. This is crucially important as the pandemic has trapped us into an existence in which we not only live at home but work from there and, indeed, get our meals delivered there, too.
Finally, there is also a warning for trade unions here, too. It’s not enough to win court judgments – active mobilisation of the workers involved is also extremely important: indeed, the two must go hand-in-hand. This goes well beyond exhortations to join a union and traditional organising efforts. These are fundamental – but, to coin a phrase, they are only ever the basis of trade unionism and they are not enough by themselves. This is about hearts and minds and engagement around actually doing something. It’s quite painful for some of us to realise that the logic of collective action (Colin Crouch) is not all about orienting people towards ‘the agreement’ (Hugh Clegg) but, actually, about the logic of mobilising workers to strive for something; nevertheless, this is an important realisation which must be made. Mobilising is about workers getting out and doing something together, not about joining a union with the promise that something might happen (tomorrow, later) to improve your terms and conditions if more of you join. Gains won in courts, and in agreements, must not only be defended but advanced and ‘staircase’ agreements (reached with a view to establishing an agreement in an employer with a view to improving it) will not function unless workers are not only organised but mobilised; not just collectivised by being brought into the union but actively engaged in entrenching gains and then extending them. Mobilisation is where grassroots unions score heavily – though it is clear also that winning Supreme Court cases is likely to require the support, not to say advice, of a mainstream union.
In short, this is a great win – but it is absolutely not the beginning of the end. The hard work must start now.
EDIT 22/2/21 to put right the previous version’s incorrect inference about drivers’ entitlement to the minimum wage; and to correct the name and affiliation of the grassroots union involved in bringing the action.