Dr Liz Oliver was invited to BBC Breakfast to talk about Uber’s appeal to the Employment Tribunal decision that a group of current and former Uber drivers should have been classed as workers rather than self-employed contractors.
Liz took part in an interview alongside Mr Farrar who was one of the claimants to the employment tribunal claim. She explained that the key issue was the identification and classification of a contract between Uber and the drivers. She pointed out that three contract forms are important to employment law: a contract of employment where the individual is an employee and has access to the full body of employment protection, a ‘worker’ contract which places the individual within the scope of some but not all employment protection (a kind of “employee-lite”) or self-employment where the service provider is in business on their own and falls outside of the scope of employment protection. At Employment Tribunal the claimants successfully showed that they were workers and that placed them within the scope of The National Minimum Wage provisions and the Working Time Regulations 1998 (which includes limits to working time and access to paid holiday). The key question was whether the way that the working relationship has been characterised by Uber companies within the written terms of their agreements with drivers and with passengers matched up to the ‘true relationship between the parties’. Uber describes the relationships in terms of agency. Rather than contracting with drivers to provide services to passengers, Uber describe their role is as an agent or broker; they simply bring drivers and passengers together. Ultimately the contract to take and provide a ride is between the driver and the passenger. The structure of these contractual relationships is at the heart of the Uber business model and the company has shown keen to defend its position. They were given leave to appeal to the Employment Appeal Tribunal and the hearing begins today.
A number of similar claims have been made by people who provide services through platforms so this decision will be watched closely by those who ‘participate in the platform economy’. In Liz’s view the argument that Uber drivers are workers is a valid and strong one. However a favourable outcome for drivers would by no means end they story. An important question for examples is when drivers be considered to be workers, throughout the whole time that they are logged onto the App and ready to receive rides or only for the duration of the ride itself. Bottoming out questions such as these will test the how the architecture of existing regimes such as the framework of the national minimum wage accommodates the opportunities that platforms provide for flexible ways of working. Another question is how platforms would respond to further pressure to contract with service providers as workers. Would they seek to place more risk onto service providers to emulate self-employment more closely or would they assert more control over service providers in a manner more akin to employment? The growing body of litigation in the area of contract form is clearly playing a catalytic role in finding an appropriate way to combine flexibility and fairness. Here it seems that service providers themselves are pursuing a more ambitious set of outcomes than those proposed in the recent Taylor review of modern working practices. Nevertheless litigation is a blunt tool when it comes to finding imaginative solutions. Could the key actors in the world of platform service provision find a space outside of this high stakes context to grapple with these issues? Innovation is, after all, at the heart of the development of the platform economy.
You can watch the interview through BBC iplayer although the programme is only available for 24 hours. BBC One (from 1h11m) 27th September – Broadcast