Uber drivers are “workers”, ruled the Employment Tribunal last week. They are not “self-employed”. This means that they are entitled to basic employment rights, including: 5.6 weeks’ paid annual leave per year; a maximum 48 hour average working week; rest breaks; the national minimum wage and whistleblowing protection.
The drivers are not “employees” and are therefore not entitled to the ability to claim termination rights such as unfair dismissal and the right to claim a statutory redundancy payment.
The case, supported by the GMB trades union, will affect tens of thousands of Uber drivers.
The Claimants in the case were bringing claims for failure to pay the minimum wage and for failure to provide paid leave. Uber’s defence was that they did not have to pay the minimum wage or provide for paid holidays as the drivers were “self-employed”.
In the Tribunal’s view, when the following conditions are satisfied, a driver is said to be working for Uber under a worker contract: (1) the app is switched on; (2) the driver is within the territory where they are authorised to work and (3) is able and willing to accept assignments.
The Tribunal judgment is scathing of Uber’s defence to the claim. It accuses Uber of “twisting language” and “requiring drivers and passenger to agree, as a matter of contract, that it does not provide transportation services”. It was a relief, if not entirely unsurprising, that the Tribunal determined that Uber are an organisation who run a transportation business and employs drivers to that end.
On that point, the Tribunal held that Uber’s defence and written terms “do not correspond with the practical reality”. The Tribunal continues, “The notion that Uber in London is a mosaic of 30 000 small business linked by a common “platform” is to our minds faintly ridiculous”.
The judgment has implications for other companies such as Deliveroo and Hermes who use similar business models. It also raises questions about the number of people in the UK wrongly classified as self-employed, or bogus self-employed, and therefore not receiving the employment protections they should be.
Uber swiftly stated that they would appeal the decision claiming that most drivers are happy with the current situation. Further, they appear to be claiming that the decision only affects the two Claimants in the case. Clearly this is disingenuous. The decision will affect all 40 000 UK drivers.
Uber drivers should now lodge Tribunal claims for failure to pay the national minimum wage and for holiday pay on the basis that they are “workers”. These claims are likely to be put on hold pending the appeal process but, if claims are not lodged now they will be out of time. They will also fall foul of the Tories 18 month rule which means that the maximum back pay people can receive is limited to a period of 18 months.
There has been a fairly over the top, bordering on hysterical, reaction by the right wing media and some organisations representing business.
It will end the flexible labour market, they cry. Uber drivers will no longer be able to choose to work just peak hours when rates are high – they will have to work at other times where the rates are not so good, when they could be working elsewhere. Drivers will receive holiday pay but will be unable to decide to take time off whenever they feel like it. No more last minute holidays, all will have to be booked in advance screams The Spectator.
All of this scaremongering entirely misses the point. The “gig economy” is fundamentally exploitative. Most employees simply cannot afford to take holidays – forget take last minute holidays where no notice is required. Similarly, the notion of choosing when you can work so you can exploit the system to make the most money is simply not the reality of working people’s lives. Most people do not wish to have more than one job; if they do have, it is out of necessity and not out of choice. People want secure and decent paid employment. The suggestion that this decision is bad because it means you cannot work somewhere else at certain points of the day and work for Uber when you can make the most money is lost on most ordinary working people.
Lawyers for the Claimants in the Uber case told the Employment Tribunal the Claimants were effectively controlled by Uber but did not have basic employment rights. The Tribunal was advised that one of the Claimants earned only £5.03 per hour, far less than the national living wage of £7.20 per hour. Claimant, James Farrar stated, “This time last year I did 91 hours a week. Is that a choice? I am not sure. I felt I had to do that at that time to survive”. Sadly, many “self employed” people are forced into this sort of work through circumstance and often feel exploited.
Put simply the “gig economy” too often allows businesses to get out of paying the minimum wage and providing even the most basic of employment rights to those helping to make them significant profits. Frankly, if it wasn’t for the drivers who make money for Uber, they would not be the multi-million pound global cooperation that they are today.
Flexibility in the labour market is a long standing excuse used by employers not to provide those making them money with the most basic of rights. In any event, the judgment does not affect driver flexibility. As Maria Ludkin, GMB’s Legal Director, stated “Uber’s decision to appeal is purely related to protecting their ample profits and nothing to do with protecting the drivers”.
Workers in the “gig economy” would be well advised to consider joining those forward thinking trades unions seeking to address the imbalances and exploitation which this case has highlighted.