Uber – Gig Cancelled?   

 

The expanding ‘gig economy’ is radically changing the job market in the UK and presenting new challenges to policy makers in seeking to guarantee both a wide availability of work, as well as providing job quality and security for employees. Uber, alongside other large firms such as Deliveroo, operate through an app whereby drivers work flexibly and are paid per ‘gig’ (job). Uber has made clear through their strict legal strategy that they recognise their employees as ‘self-employed’ service providers in an agency arrangement. However, firms that operate under this business model are increasingly under serious threat from legal challenges; for example, claims against Uber have successfully highlighted the poor treatment of their ‘workers’ who are denied fundamental employment rights.

It can be said with certainty that Uber has had a far from smooth ride in 2017. Most prominently, in September the San Francisco-based firm lost its license to operate in London after Transport for London (TfL) found that the business lacked ‘corporate responsibility’ in a number of key issues which have ‘public safety and security implications’ (a decision endorsed by Sadiq Khan). In November, in the ‘latest shocking development about Uber’ (Khan), it was found that more than half (2.7 million people) of Uber’s entire UK customer base were affected by a personal data hack, following which the company paid off £100,000 to the hackers. As the latest city to ban the company, in December, York joined Sheffield and London in refusing to renew their license given the data breach concerns and several ongoing complaints.

Most recently, the Employment Appeal Tribunal (EAT) provided a further setback for the business in the case of Uber BV and others v Aslam and others. After winning at first instance, the EAT accepted Yaseen Aslam’s claim that Uber had wrongfully omitted to award drivers ‘worker’ status, which would provide them with minimum wage entitlements and holiday pay. Referring to Baroness Hale’s authoritative distinction in Bates van Winkelhof v Clyde & Co LLP (between self-employed micro-entrepreneurs and those working for another’s business), Judge Eady QC rejected the notion that the drivers each have their own businesses and made careful reference to the specific facts of the case. This took account of the fact that drivers have a general obligation to be ‘available’ – they will be offered the nearest trip and should accept 80% of trips (to keep their account status as drivers for Uber).

This outcome raises uncertainty as to the future of the gig economy and in this context, it appears unsurprising that in November Uber requested to ‘leapfrog’ their appeal to the Supreme Court to obtain an authoritative definition of workers’ rights.

However, this petition was recently rejected under the appeal rules in the UK; it can be questioned whether this decision leads to a further delayed consensus on modern employment practices. Jason Moyer-Lee, General Secretary of the Independent Workers Union of Great Britain (who is also supporting Aslam’s case), stated that Uber should now act upon these rulings and that this ‘decision is another blow to Uber’s legal strategy behind denying workers their rights’.

Under s.65 Criminal Justice and Courts Act 2015 (which only came into force in August 2016), requests may be made to appeal the case from the EAT straight to the Supreme Court, bypassing the need for the Court of Appeal to make a ruling. This makes exception to the routine process under Part 52 of the Civil Procedure Rules and strictly requires the appeal to be on a point of law of ‘general public importance’. Whilst it can be argued that this appeal constitutes a matter of ‘general public importance’, the benefits of prior consideration by the Court of Appeal may have been central to this refusal. In addition, historically only a very small number of cases have leapfrogged to the Supreme Court; in C (A Minor) v DPP (1995), the Divisional Court did away with a presumption concerning child criminal liability – the House of Lords held that it was only for Parliament to effect such a major change to the law.

All in all, it is likely that 2018 will be a pivotal year for Uber and employment rights in the gig economy. Alongside possible government reforms flowing from the Taylor Report, most importantly, the Court of Appeal are likely to rule on the Aslam case in Summer 2018. Despite Uber’s claims, previous decisions indicate that their drivers come within the legal definition of a ‘worker’ and that, correspondingly, they should take the necessary steps to comply and prevent further legal costs. This case will undoubtedly be impacted by the forthcoming Supreme Court judgement in Pimlico Plumbers Ltd, a case concerning the ‘worker’ status of self-employed plumbers (penned to be heard in Spring 2018).

It is vital that the law offers clarity to employees in this growing sector – Uber alone has approximately 50,000 employees in the UK. Large firms must be prevented from circumventing their basic employment duties through legal jargon.

 

2 January 2018

Elliot Ross

 

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