Category Archives: Non-standard forms of employment

BBC interview with Dr Liz Oliver on Uber driver row

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 DSC_4741of 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

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Understanding the implications of the global growth of non-standard work

calum-carson-web

Calum Carson reflects on his input into a major new research report by the International Labour Organisation on the growth of non-standard forms of employment around the world.

During the past few decades, a key debate has emerged in the work and employment research field as to whether the traditional laws and conventions that regulate employment and the employer-employee relationship have been irrevocably transformed by the rise of a number of new, “non-standard” forms of employment (NSFE). While this has long been a major issue of contention these developments are now being taken seriously by major global actors such as the International Labour Organisation (ILO), International Monetary Fund (IMF) and Organisation for Economic Cooperation and Development (OECD). The continued growth of NSFE and its implications for those employed in such roles are the key focus of a major new report launched this month by the ILO, which highlights the policies needed to improve the quality of non-standard jobs. The report finds that there has been a rise in non-standard forms of employment globally, to the extent of which that they are now, in the words of ILO Deputy Director-General for Policy, Deborah Greenfield, “a widespread feature of contemporary labour markets.”

Such non-standard forms of employment include temporary roles; part-time work; temporary agency work; “micro jobs”; the misclassification of individuals in certain roles as “independent contractors” (otherwise known as disguised employment relationships); and dependent self-employment. In Britain in particular, the growth in the number of workers employed on zero-hour contracts reflects the rise of these new forms of employment, with over 903,000 individuals (2.9% of the entire workforce) employed under such contracts. Additionally, a comprehensive analysis published in November revealed that more than one in five workers in the UK (over 7.1 million people) are employed under precarious working conditions, up from 5.3 million in just 2006.

With the continued growth in NSFE an ever-greater number of workers are unable to access certain benefits associated with a ‘traditional’ employment relationship, such as pension contributions from employers, paternity leave, and sickness and annual leave pay. Such workers also struggle to collectively organise and represent themselves in disputes with their employers via effective trade unions, as seen most recently in the UK with strikes by Deliveroo and Uber workers. The rise of these new forms of employment call for new forms of regulation in turn, both in order to address both the issues discussed above, and to ensure that the future evolution of NSFE develops in a sustainable manner for both workers and their employers.

While the ILO report does highlight the positive implications that NSFE can have in certain instances, including providing access to the labour market for disadvantaged groups and granting some flexibility to both workers and employers, it also cautions that NSFE is often associated with greater insecurity for workers. In some cases, particularly where contractual arrangements have blurred the employment relationship, there is evidence that workers have difficulty exercising their fundamental rights at work, or gaining access to social security benefits and on-the-job training. These issues also affect employers, too, by creating productivity losses and resulting in high rates of turnover in staff.

Finally, the report suggests four key policy recommendations to improve the quality of non-standard jobs: to plug regulatory gaps in the oversight of NSFE roles, in order to protect workers in a more direct manner; to strengthen collective bargaining for NSFE workers, to enable them to challenge their employers where necessary; to strengthen social protection of workers, to ensure that workers have access to the same level of benefits that workers working under a traditional employer-employee relationship do; and by instituting employment and social policies that support job creation and that accommodate workers’ needs not only for training, but also for family responsibilities such as childcare and elder care.

In the context of the growth of NSFE and its seemingly permanent embedding in labour markets across the world, this report makes an important contribution in helping to highlight the key issues surrounding this phenomena, and in how best to protect those workers operating within such roles both now and in the future. Such research is critical in helping us to fully understand and inform the continued development of these issues, as well as other changing dynamics within the world of work, employment and labour markets. The ILO, CERIC, and our colleagues across the world have a key role to play in the undertaking and dissemination of this crucial research.

Here at CERIC research into this area continues with a new study commissioned by the Committee on Employment and Social Affairs of the European Parliament, which will examine the development of the collaborative economy in Europe and the potential need for greater social protections for workers operating within it. Involving a wide number of colleagues across CERIC and under the leadership of Professor Chris Forde, this research will report back its findings to the European Parliament and the wider public in May.