Uber have lost their appeal against a landmark employment tribunal decision that its drivers should be classed as workers, rather than self-employed individuals, with rights to paid holidays and the National Minimum Wage.
The ruling could affect tens of thousands of workers in the “gig economy”, which has flourished in recent years. Uber claim to have 45,000 drivers in London alone. Master of the Rolls, Sir Terence Etherton, the second-highest ranking Judge in the country, and Lord Justice Bean, upheld the October 2016 decision in the Court of Appeal on Wednesday. A third judge, Lord Justice Underhill, upheld the appeal, leading to a 2-1 decision against Uber.
This is the third time Uber have lost the case, meaning that they have just one route of appeal left, the Supreme Court. Uber intend to escalate the appeal. A spokesperson said: “This decision was not unanimous and does not reflect the reasons why the vast majority of drivers choose to use the Uber app. We have been granted permission to appeal to the supreme court and will do so.
“Almost all taxi and private hire drivers have been self-employed for decades, long before our app existed … If drivers were classified as workers they would inevitably lose some of the freedom and flexibility that comes with being their own boss.”
Uber claim that their drivers are simply self-employed individuals that licence their software from them, but judges found this claim to be incompatible with their status as a London private-hire service: “For [Uber] to be stating to its statutory regulator that it is operating a private hire vehicle service in London and is a fit and proper person to do so, while at the same time arguing in this litigation that it is merely an affiliate of a Dutch-registered company which licenses tens of thousands of proprietors of small businesses to use its software, contributes to the air of contrivance and artificiality which pervades Uber’s case.”
Under UK law, “workers” are entitled to a limited sub-set of employment rights, including receiving the National Minimum Wage, statutory minimum paid holiday and rest breaks, a maximum week of 48 hours unless they opt-out, protection against discrimination and for whistleblowing, and the right to work part-time if they wish. “Employees” receive further rights including sick pay and maternity/paternity pay. The Uber drivers’ claim is that they are workers of the Dutch registered, San Francisco based firm.
“This is the perfect early Christmas present for GMB’s Uber members, but this case is about the wider ‘gig economy’ too,” Tim Roache, general secretary of the GMB union that helped bring the original case, said. “Employers are on notice that they can’t just run rough shod over working people to put more on the bottom line for shareholders.”
Uber drivers are often managed by AI machine bosses, who monitor their performance, breaks and client feedback and even punish them for not meeting company standards, in a somewhat dystopian working model. James Farrar, one of the Uber drivers to bring the case to court, welcomed the decision, although suspects Uber are guilty of using the appeal process to delay the impact of the decision until after the company floats on the stock market next year:
“We’re really delighted and relieved but also dismayed that drivers have no remedy while Uber exhausts another appeal. It is just a cynical ploy to delay the inevitable while they pursue a [stock market flotation] next year.
“It shouldn’t be us doing this. It is the government’s job to enforce the law and the mayor of London should and could do more to protect drivers.”
Roache said. “Uber should just accept the verdict and stop trying to find loopholes that deprive people of their hard-won rights and hard-earned pay.”
20th December 2018.
Sources:
https://www.theguardian.com/technology/2018/dec/19/uber-loses-appeal-over-driver-employment-rights
https://www.fin24.com/Companies/uber-loses-case-over-drivers-paid-holidays-minimum-wage-20181219
