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Coronavirus: More Than A Runny Nose For Workers In The Gig Economy – Employment and HR

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Coronavirus: More Than A Runny Nose For Workers In The Gig Economy


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As the coronavirus grips the world economy, governments and
businesses are considering increasingly drastic action. But as
companies move forward with plans to look after employees via
self-isolation and remote working, spare a thought for the UK’s
5 million self-employed gig economy workers. We take a look at the
impact of the virus on these individuals, the legal position, and
what employers and gig workers can do to mitigate the
situation.

Impacting the ability to work

Last week, Twitter wrote to all 4,000 of its global
employees ‘strongly encouraging’ them to work from home for
the foreseeable future. Google Ireland effectively closed its office over fears that an employee
may have been exposed to the virus. Technology is certainly at hand
to enable some types of employees to continue to work during office
shut-downs, minimising the impact to business.

Many gig workers, however, aren’t able to do their work from
home. Taxi drivers, couriers, food delivery cyclists and shop floor
staff on zero-hours contracts all work jobs which involve a high
level of human contact. They also share another important trait: no
relationship of employment exists between them and the companies
which engage them to work.

By being classed as self-employed, companies have no obligation
to provide gig workers with any work, and no obligation to provide
or even suggest alternative methods of working. We have already
started to see this in the context of the coronavirus when Uber suspended the account of the driver who took a
patient to hospital who was later diagnosed with the virus.

What the law says

Due to their self-employed status, gig workers are not eligible
for statutory sick pay (SSP). For employees, the government has
announced a raft of temporary measures which provide for
SSP to begin immediately (rather than the usual 4 day gap) and be
payable even if the employee is not actually sick (i.e. are
self-isolating). None of these measures apply to gig workers, whom
the government says should seek support via the benefits system.
Whilst payments are being sped up and certain restrictions on
claiming are temporarily relaxed, navigating the complex benefits
system will be unfamiliar territory to many of the self-employed.
There ultimately remains no statutory support for workers in the
gig economy.

The 2017 Taylor Review made 53 recommendations to
address the gap in workers’ rights, with Theresa May’s
government agreeing to implement all but one of them, and go even
further in certain areas. However, a change in the executive and
the resource-vampire that is Brexit has pushed any legislation to
the side lines. In a Brexit double-whammy, the EU have started to
look into legislation to protect gig workers, but the UK will
almost certainly not be required to implement EU legislation by the
time it is finalised.

Mitigating the impact

Although those who take up gig work as an extra source of income
are likely to value their health over the extra cash, the reality
is that, for many, gig work is their sole source of income. Many
gig workers are also young and therefore less likely to exhibit
symptoms and more likely to need the cash – exacerbating the
spread of the virus by continuing to work.

Companies are encouraged to support their gig workers by
exercising discretion to provide sick pay to those struck off with
the virus or in precautionary quarantine. Other forms of support,
including the provision of protective equipment and a commitment to
discussing cases on an individual basis are also welcomed.
Companies should also be wary of action from Trade Unions, who have hit back at companies enforcing
self-isolation on gig workers
.

Gig workers should ensure they have their own health and that of
their co-workers and customers at the forefront of their minds. If
exhibiting the relevant symptoms, individuals should stay at home
and seek advice and support from NHS 111 and the company they work
for.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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A roadblock to the gig economy? UK Supreme Court classifies Uber drivers as “workers”

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In a landmark ruling, the UK Supreme Court has unanimously held that private hire vehicles drivers who provide their services through the Uber app were “workers” for the purposes of UK employment legislation: Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5.  Earl Deng and Allison Wong discuss the decision and its implications for the gig economy in Hong Kong.

Hong Kong is known for being an employer-friendly jurisdiction, so it may come as a surprise to many that as long as 14 years ago, the Hong Kong Court of Final Appeal held in Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951 that the status of an “employee” working under a contract of service under section 5(1) of the Employees’ Compensation Ordinance, Cap. 282 did not depend on the mere existence of a contract or necessitating dominant control over the worker in question, but must instead be ascertained as a matter of overall impression and to be determined on a case-by-case basis.

Since Poon, the rise of the gig economy through app or web portals has further muddied the waters with innovative business models and service agreements where the service provider no longer directly engages the worker to provide a service for its customers, but instead purports to act as a matching agent between a service providing worker and the ultimate paying customer and taking a portion of the fees.

The Arguments

In Uber, the appellants argued that pursuant to its service agreements which both the driver and the customer accepted and separately entered into, Uber’s role was simply as a booking agent for independent contractors who provide transportation services (“Driver”) and that the contract for transportation services was between the Driver and the end user (“Rider”).

The Supreme Court unanimously rejected Uber’s arguments on two grounds.

On agency, the Supreme Court rejected that any agency relationship arose on the facts, whether on the wording of the service agreements or any evidence of overt acts by the principal (i.e. Driver) to confer the necessary authority to Uber to act on its behalf.

On contract, the Supreme Court upheld its previous decision in Autoclenz v Belcher [2011] UKSC 41; [2011] ICR 1157 and clarified the theoretical justification for it.  Like PoonAutoclenz held that whether a contract gives rise to a relationship of employment is not to be determined by the ordinary principles of contract, but to adopt a test that “focuses on the reality of the situation where written documentation may not reflect the reality of the relationship”.  However, instead of focusing on the exceptional nature of employment contracts, the Supreme Court held that the rights asserted by workers under employment legislation are not contractual rights but rights under legislation, and therefore the Court is to determine whether for the purpose of that specific legislation, the claimant was an employee.

The Court went on to hold that the purpose of the employment legislation in the UK is to protect vulnerable workers from exploitation by providing minimum standards and conditions of work and therefore it would be inconsistent against this legislative background to use the contract as a starting point to determine whether an individual falls within the definition of a worker.

On the facts, the Court emphasised certain aspects of the relationship between Uber and the Drivers which tend to show that there was a relationship of employment, including:

(i) the fixed nature of Drivers’ remuneration with no bargaining power on the part of Drivers;

(ii) the fact that Uber dictated the terms of services;

(iii) Uber’s control over Drivers on their performance via inter alia cancellation penalties and performance metrics;

(iv) restrictions on Drivers from establishing any relationship with Riders.

Significance to Hong Kong

At first blush, this decision together with the CFA’s judgment in Poon suggest that the gig, literally, is up.

However, and like all “overall impression” cases, Uber BV case was confined to its facts and the evidence before the Court.  Uber BV’s position remains that the case is confined to a group of drivers in 2016 under those terms of service agreement.

In Australia, the Full Bench of the Fair Work Commission held in Amita Gupta v Portier Pacific & Uber Australia Pty Ltd [2020] FWCFB 1698 that workers delivering through the Uber Eats platform were not employees due to:

(i) lack of control over working hours;

(ii) no exclusivity to platform;

(iii) no requirement to wear a uniform, bear logos, or represent herself as a representative of Uber.

Deputy President Colman also noted that the factual matrix did not require the Court to consider whether there was an employment relationship as Uber was simply a commercial intermediary between restaurants, customers and deliverers. That judgment is now on appeal.

Also of note is the decision of the Supreme Court not to express any concluded view on arguments put forward by Uber that they were simply a payment agent (but which failed to establish on the facts and evidence), providing some support to Deputy President Colman’s views.

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NSW gig economy guide ‘penned by Uber’

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New guidelines from the NSW government aimed at improving safety in the gig economy may as well have been penned by Uber and ignore the compounding pressures leading to dangerous conditions for delivery riders, the Transport Workers Union says.

The NSW government established a taskforce to improve the safety of gig economy workers following the deaths of five delivery riders in the space of two months late last year. The Joint Taskforce on food delivery rider safety is led by SafeWork NSW and Transport for NSW, and is expected to unveil its final guidelines this week.

The guidelines were discussed and given the green light at the taskforce’s final roundtable, held in Sydney on Thursday.

But no delivery riders were present at this roundtable after the Transport Workers Union after its members quit the taskforce last week, labelling it “farcical” and criticising it for not taking stronger action.

At a press conference held below the roundtable meeting, TWU national secretary Michael Kaine said the taskforce’s final recommendations will do nothing to address the dangerous issues for delivery riders, including low rates of pay and scheduling pressure created by algorithms.

“This is not an action plan, it is an inaction plan. This guidelines process has failed to deal with the deadly pressures that are killing riders on our roads. It has left those deadly pressures untouched, unacknowledged and unregulated,” Mr Kaine said.

“It looks as though these guidelines have been penned by Uber or Deliveroo themselves. This government has caved into the pressure from these massive companies and accepted hook, line and sinker their version of how they want the world to look.”

NSW taskforce guidelines miss the point: Transport Workers Union national secretary Michael Kaine

Steve, a Deliveroo delivery rider, had taken part in the taskforce’s roundtable, but said he had also chosen to withdraw from it.

“I just feel it’s pointless to stay on with how it’s going about it at the moment,” Steve told the media.

“Reasonable pay is all we’re asking for, so it doesn’t compel us to rush from one place to the other. There is a clear link from our income stream to our health and safety. The problem with this taskforce is they’re ignoring it because they just want to talk about health and safety.

“But you have to link it with the core issues of why it’s happening. We need state government interventions, we need some kind of regulation in this economy otherwise there’ll be more deaths.”

Esteban, who is also a delivery rider, was recently injured after falling off his bike on light rail tracks in the rain while rushing to complete a job.

“I just don’t want this happening anymore,” he said. “Safety in this occupation is very critical and it’s something that’s not being taken into account properly. Fellow riders have died, most of them immigrants.

“I put myself in their shoes, and I imagine what will happen with me and my family if I come to this country with a lot of dreams and suddenly I just died because of a lack of safety in my job. It’s very disappointing.”

The launch of the taskforce came with renewed hope that action would be taken to protect delivery riders, but this has now been “extinguished”, Mr Kaine said.

“That’s what the NSW government is going to announce in the coming days, that it is extinguishing hope that things will get better for riders in the gig economy,” he said.

“We were told absolutely that the government would take no regulatory steps to improve conditions for riders, it would take no steps to ensure that responsibility was placed on these behemoths and would not listen and not take into account or acknowledge the key pressures that exist that are creating these problems.”

Do you know more? Contact James Riley via Email or Signal.

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Deliveroo share price rise shows investors aren’t bothered about gig economy workers | Comment & Opinion

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Deliveroo rider Subway

It’s understandable some Deliveroo riders opted to go on strike this week. While CEO Will Shu and early investors have made hundreds of millions (despite the IPO flop), a damning report last month found many are paid less than the minimum wage; only a handful qualified for the maximum £10,000 bonus; and none got employee share options either as, despite their blue Roo uniforms, and in some cases years of service, it’s just a gig. 

Trouble is, the striking riders not only have no worker rights: they have no power. Courier work promises some pay instead of none, and it seems there are many more ‘scabs’ willing to keep gigging among the 50,000 riders than the few hundreds reportedly on strike. With a low barrier to entry – a pedal bike – there’s also an easy pipeline among the 693,000 fewer Brits on a payroll since February 2020 as its recruitment of 25,000 extra riders last year proved. And some riders like the gig, and fear changes would mean less flexibility to work when they want.

True, concerns about the fate of Deliveroo’s gig economy workers led City fund managers, including Legal & General and Aviva, not to invest (albeit more likely concerned due to the potential impact on their investment than on ethical grounds).

But this week, as retail shares in Deliveroo started trading, the share price went up, despite the strikes – albeit fractionally – indicating everyday investors aren’t bothered.

Perhaps real change will come when Deliveroo’s supermarket and fast food chain partners start getting tarred with the exploitation brush. A few big names pulling out of the platform would surely bring some change.

Or perhaps some of Deliveroo’s rivals can make more of the rights they afford their riders. Just Eat CEO Peter Duffy said recently that the gig model had led to the worst working conditions “in a hundred years”.

But the most likely agent of change is the courts. We’ve seen Uber lose its legal fight. If a rider strike won’t harm Deliveroo, losing its gig workers would be much more damaging to its business model. And you never know, Chancellor Rishi Sunak may also impose a digital delivery tax. That would nuke it.

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