UBER UPDATE UK
UBER IN THE SUPREME COURT: THE CASE SO FAR
The two-day hearing in the Supreme Court of the Uber BV and others v Aslam and others case concluded 22 July. It will doubtless be a landmark judgment in the field of employment law, and partic- ularly the questions surrounding the so-called ‘gig-economy’. Initially the Employment Tribunal (ET) had heard claims by Mr Aslam and others for failure to pay the minimum wage, and to pro- vide paid leave. Uber defended the claim stating that the claimants were not “workers”, and therefore were not afforded protection. However, the ET decided that the claimants were employed as “workers”, and that each of the claimants’ working hours began whenever they were within their working territory, had the app switched on, and were ready and willing to accept trips. The ET’s decision centred on the difference between when the app was switched on and off. It said that, while the app was switched off, there was no question of any contractual obligation to provide driving services, and that there was no ‘umbrella’ contract. However, the ET decided that when the app was on and a driver was working, this would fit the definition of working under a ‘worker’ contract, as defined by the legislation. Uber appealed this decision to the Employment Appeal Tribunal on various grounds including: • That the ET had erred in law, as although there was no contract between the drivers and Uber London, there was a written agree- ment between the drivers, UBV (the parent company), and riders, which was inconsistent with a worker relationship;
• The ET had erred by relying on regulatory requirements as evi- dence of worker status;
• There were incorrect findings of fact • The ET had failed to take into account matters relied on by Uber. The appeal was dismissed, holding that the ET had been right to reject Uber’s definition of the relationship in their written contracts. The point was made that, in deciding issues of employment status, it is important to look at statutes, and not rely solely on definitions and ter- minology used by the parties; just because the word “self-employed” is used, doesn’t mean that it is in fact the employment status. Uber appealed further to the Court of Appeal, who also dismissed the appeal, holding that the Employment Tribunal had correctly defined the relationship between the claimants and Uber. Uber then appealed to the Supreme Court (SC) which heard two days of arguments. The issues to decide were: a) whether the drivers were considered “workers” b) if they were, what periods constituted their “working time”. Employment status is at the centre of this dispute as it affects the rights given to those employed. The different categories of employ- ment are: dependent employees, who are entitled to a wide range of employment rights and benefits; workers, who are entitled to some, but not all, of those rights; and third party contractors, who are afforded very little protection under employment legislation. This is very important for the drivers, as if they are considered to be workers, they are entitled to many more rights including paid leave, etc. This would have a wide-reaching impact on the gig-economy and the issues surrounding zero-hours contracts. Therefore, the SC decision will be vitally important to Uber drivers and those working for similar companies. The SC Justices will consider the arguments they have heard, and will hand down a judgment within the next few months. If they dismiss the appeal, as the lower courts have done, then Uber will be faced with having to provide their drivers with paid leave and a range of other benefits. If the appeal is granted, however, then thousands of drivers will be left without any real statutory protection in their work. Summary supplied by Joshua Xerri.
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UK UBER DRIVERS ARE TAKING THE ALGORITHIM TO COURT IN NETHERLANDS
A group of UK Uber drivers has launched a legal challenge against the compa- ny’s subsidiary in the Netherlands. The complaints relate to access to personal data and algorithmic accountability. Uber drivers and Uber Eats couriers are being invited to join the challenge, which targets Uber’s use of profiling and data-fuelled algorithms to manage gig workers in Europe. Platform workers involved in the case are also seeking to exercise a broader range of data access rights entrenched in EU data protection law. It’s an interesting test of how existing legal protections will regulate applications of artificial intelligence which looks set to remain sub- ject only to protection via the General Data Protection Regulation (GDPR). The European Commission is also working on improving liability rules for platforms with a Digital Services Act due by the end of the year. As part of that work it is consulting on related issues such as data portability and platform worker rights. The lawsuit was filed in Amsterdam’s district court on 20 July and the group of Uber drivers from London, Birmingham, Nottingham and Glasgow will argue the tech giant is failing to comply with the GDPR and will ask the court to order immediate compliance asking for fines of €10,000 for each day it fails to comply. They will also ask the court to order Uber to comply with a request to enable them to port personal data held in the platform to a data trust which would be administered by a union. Uber UK said it works hard to comply with data access requests, claiming it provides explanations when it’s unable to provide data. The GDPR gives EU citizens data access rights over personal information held on them, including a right to obtain a copy of data they have provided so that it can be reused elsewhere. The regulation also provides some additional access rights for individuals who are subject to wholly automated decision making processes where there is a substantial legal or similar impact. This would appear relevant as Uber’s algorithms essentially determine the earning potential of a driver or courier based on how the plat- forms assigns (or withholds) jobs from the available pool. The legal challenge is being supported by the App Drivers & Couriers Union (ADCU), which says it will argue Uber drivers are subject to performance monitoring at work. It also says it will present evi- dence of how Uber has attached performance-related electronic tags to driver profiles with categories including: Late arrival/missed ETAs; Cancelled on rider; Attitude; Inappropriate behaviour. “This runs contrary to Uber’s insistence in many employment mis- classification legal challenges across multiple jurisdictions worldwide that drivers are self-employed and not subject to man- agement control,” the drivers further note in their press release. The legal action is being further supported by the International Alliance of App-based Transport (IAATW) workers in what the ADCU dubs an “unprecedented international collaboration.” The drivers have also launched a Crowdjustice campaign to help raise £30,000 to fund the case.
AUGUST 2020
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