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Uber loses gig workers rights challenge in UK Supreme Court – TechCrunch

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Uber has lost a long-running employment tribunal challenge in the U.K.’s Supreme Court — with the court dismissing the ride-hailing giant’s appeal and reaffirming earlier rulings that drivers who brought the case are workers, not independent contractors.

The case, which dates back to 2016, has major ramifications for Uber’s business model (and other gig economy platforms) in the U.K. — and likely regionally, as similar employment rights challenges are ongoing in European courts.

European Union lawmakers are also actively eyeing how to improve conditions for gig workers, so policymakers were already feeling pressure to clarify the law around gig work — today’s ruling only increases that.

The U.K. Supreme Court judgement can be found here.

In a press summary the court said: “Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance.”

“A classic form of subordination”

The court rejected Uber’s argument that it merely acted akin to a booking agent for drivers, noting that the company would have no means of performing its contractual obligations to passengers (nor complying with its regulatory obligations as a licensed private hire vehicle operator) — “without either employees or subcontractors to perform driving services for it”.

The court also weighed how Uber’s business operates in light of U.K. employment law, which provides for a “worker” status — a classification which is neither employed nor self-employed — considering other case law and the detail of the drivers’ relationship with Uber in coming to its interpretation of the legislation.

Its conclusion is that “the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber”.

“Although free to choose when and where they worked, at times when they are working drivers work for and under contracts with Uber (and, specifically, Uber London),” the court wrote, noting its agreement with the earlier tribunal ruling Uber also lost.

In the judgement the court has emphasized a number of aspects of that ruling as important — namely (emphasis ours): Pay/remuneration (since Uber drivers are not free to set the price of rides); the contractual terms of the performance of the service (again, drivers are not free to set these; Uber does); and Uber’s control over service provision, such as via the use of algorithmic management of logged-in drivers and through ownership of the technology infrastructure. The court also flagged how Uber restricts communications between driver and passenger to a bare (and even “stark”) minimum.

In a discussion of how Uber uses driver ratings as another tool of control, the court also noted that driver ratings are not disclosed to passengers (i.e. to help them inform/choose their choice of driver) — but are exclusively for Uber’s use; “purely as an internal tool for managing performance and as a basis for making termination decisions where customer feedback shows that drivers are not meeting the performance levels set by Uber”.

“This is a classic form of subordination that is characteristic of employment relationships,” it added.

The court also agreed with the earlier tribunal finding that time spent by the drivers logged into Uber’s app and on duty in London available to accept a trip can be classed as working time under U.K. law (aka the Working Time Directive and Regulations) — which has implications for fulfilling the National Minimum Wage.

The Supreme Court appears to have had a harder time with the scenario of how to calculate working time if ride-hailing drivers are logged onto multiple (i.e. competing) apps simultaneously, with the judge writing: “I have concluded that this question cannot be answered in the abstract.” However, in the case of Uber, its dominant market share in London has made the question moot for this particular legal challenge.

In a statement responding to the Supreme Court’s dismissal of its appeal, attributed to Jamie Heywood, regional general manager for Northern and Eastern Europe, Uber said:

We respect the Court’s decision which focussed on a small number of drivers who used the Uber app in 2016. Since then we have made some significant changes to our business, guided by drivers every step of the way. These include giving even more control over how they earn and providing new protections like free insurance in case of sickness or injury.  We are committed to doing more and will now consult with every active driver across the UK to understand the changes they want to see.

The ride-hailing company emphasized that the worker reclassification that flows from this judgement applies to a specific group of Uber drivers who brought the claim, many of whom it said no longer drive on its app.

It also pointed to factors the court had weighed which it said no longer apply — saying it has, for instance, changed its app so that drivers do see the trip destination and price; and also claiming that since 2017 there has been no repercussion for rejecting multiple consecutive trips.

Uber added that it would be launching a nationwide consultation with all active U.K. drivers — seeking views to feed its lobbying on gig-working conditions.

It said it will share the outcome of its process in the coming weeks.

In recent days — and likely in anticipation of this verdict — the company has kicked off a major lobbying effort in Europe calling for deregulation of platform work.

It argues that without a carve out from employment laws platforms’ hands are tied over how far they can go to offer workers a better deal.

Uber says it’s pushing for some of the same “principles” that featured in the Prop 22 ballot initiative, which ride-hailing giants Uber and Lyft spend hundreds of millions of dollars pushing in California, going on to win a carve out for delivery and transport work from employment reclassification there last year.

However, responding to Uber’s EU white paper this week, the academic research group Fairwork accused it of downplaying its ability to make changes to improve working conditions on its platform. It said the tech giant is trying to legitimize a lower level of protection for platform workers than most European workers benefit from — urging lawmakers to focus on expanding and strengthening employment protections, not watering them down.

The Supreme Court ruling certainly dials up the risk to Uber of a wave of successful challenges from other U.K. drivers — increasing its imperative to lobby lawmakers to deregulate platform work. Although, given the U.K. already has a more nuanced classification of employment status than many other markets in Europe, it’s not clear how much “favorable travel” Uber’s lobbying might achieve in the market (versus on a pan-EU level).

A major U.K. government-commissioned review of workplace rights, back in 2017, recommended renaming workers as “dependent contractors” — in a bid to help clarify “workers” versus the genuinely self-employed. But the government has yet to take up the suggestion.

It has also been slow to legislate to improve the clarity of employment status tests (as it committed to doing as part of its “Good Work” plan in 2018) — but the Supreme Court verdict may be the nudge it was waiting for.

Calls to clarify U.K. employment law by defining self-employment in legislation are following hard on the heels of the verdict. (The Association of Independent Professionals and the Self-Employed, for example, said the ruling shows the “glaring need for clarity” in the gig economy and U.K. employment law.)

Returning to Uber, the cost of extending workers to all or even a portion of its U.K. drivers would be substantial — as it would need to cover benefits such as holiday pay, minimum wage (for time spent working with the Uber app active, including waiting, not just when driving after accepting a job) and pension scheme contributions.

Such workforce status changes could also affect its wider tax liabilities — so the stakes are high.

Alternatively, it could seek to avoid the costs and risk inherent to any major reclassification of its drivers by changing its model to try to remove the risk that drivers could be reclassed as workers — such as by reducing how much control it applies to how they perform their tasks.

However, the level of change necessary to meet the legal bar may entail a far more radical redrawing of the Uber service than Uber is comfortable with. Not least as Uber has to consider impacts on its business globally.

Trying to reconfigure its service to avoid paying employment benefits would also be risky in optics/reputational terms, argues Joe Aiston, a senior associate at the law firm Taylor Wessing. He suggests Uber has sought to pro-actively manage its exposure on this front — via the white paper it released earlier this week — in which it seeks to reframe the issue of gig workers rights/working conditions by claiming a “new standard” is needed for platform work (i.e. as a tactic to avoid the application of existing employment law).

While he points out that any mass reclassification of Uber drivers would significantly increase Uber’s costs, and any attempt to pass that on to passengers (in the form of higher prices) would knock Uber’s competitiveness. So there are no easy options for it there either.

“One thing that is for sure is that other businesses engaging individuals as contractors will be looking at this latest decision and seeking to assess the extent to which the concepts considered are applicable to their business model and what changes might be required as a result,” said Aiston in a statement.

“Many will see the Supreme Court judgement as a victory for gig economy workers — often seen as under-protected in law — and those representing them. The reality may not be quite that bright as with improved employment rights come an increased potential for people to be controlled and, for example, restricted from working for competitive businesses; one of the benefits hailed by gig economy businesses is the freedom to choose when to work and for whom,” he added.

Jill Toh, a PhD researcher in platform rights at the University of Amsterdam, described the Supreme Court ruling as a “huge win” for platform workers, while noting that U.K. employment law’s “limb (b) worker” status is distinct versus employment laws in many other European countries.

Though she also suggested the ruling will have a significant influence on how judges approach ongoing gig worker rights cases in Europe.

“What’s significant is that worker organising has to be central to any solution,” she told TechCrunch. “Workers need to come together to debate and decide these issues that are directly impacting them. I don’t think our current institutions are really empowering this. Even with the wins (in the Netherlands with Deliveroo and the Italy case), driver sentiment is still mixed on the ground.”

Toh pointed out that data access is a key issue — and battleground — to ensuring a better deal for gig workers.

On that front, as it stands, it’s the platforms that control all the cards — including as they lobby for deregulation with self-serving talk of “surveying drivers for feedback” — given they are the only entities with an omniscient view of both sides of their marketplaces.

“A big part of allowing drivers to debate requires access to data and understanding of algorithmic management,” she added.

Legal challenges related to data access and algorithmic management were filed against Uber (and Ola) at the Amsterdam District Court last year, referencing Europe’s General Data Protection Regulation — including by James Farrar (one of the former Uber drivers who brought the employment tribunal challenge) and the not-for-profit Workers Info Exchange, which is pushing to further workers rights via data access.

We’ve covered those data access and algorithmic management challenge cases here, here and here.



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Workers

Biden directive expands jobless aid to self-employed, gig workers and more

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Unemployed Americans who have turned down job offers because they feared their prospective employers weren’t providing sufficient protection from the coronavirus would qualify for jobless aid under a directive the Labor Department issued Thursday.

The measure would also expand a federal unemployment benefits program, established in last spring’s economic relief package, to cover workers who have lost hours or who were laid off because of the pandemic. It would also cover school employees who lose jobs or work hours because of school closings.

The federal program, known as Pandemic Unemployment Assistance, made the self-employed and gig workers eligible for jobless aid for the first time.

“Until now, unemployment insurance benefits during the pandemic have been too scattered and too uncertain,” said Patricia Smith, senior adviser to the labor secretary. “That begins to change today, with many more workers now eligible for unemployment insurance benefits.”

Speaking to reporters, department officials declined to estimate how many Americans would now become newly eligible for jobless benefits.

The benefits will be made retroactive, officials said. People who applied for unemployment benefits after Dec. 27 can receive retroactive payments back to Dec. 6. Those who applied before then and were turned down can receive retroactive payments dating back to when they first applied.

With unemployed Americans now receiving a $300 weekly federal payment on top of state benefits that average about $320 a week, the retroactive aid could result in significant lump sum payments. The department estimates that states won’t be able to update their jobless benefit systems to include the new criteria until late March, which could mean that the first payments would amount to about four months of benefits.

Workers whose employers have closed because of the pandemic are already eligible to receive jobless aid from the federal program. But workers who were laid off even as their company remained open, such as waiters at a restaurant that stayed open for delivery, weren’t eligible. This directive will now cover those workers, the Labor Department said.

For the unemployed who have turned down jobs out of concern over the coronavirus, applicants will have to state under penalty of perjury that their prospective employer wasn’t meeting state or local guidelines on mask-wearing or personal protective equipment, said Suzi Levine, a deputy assistant labor secretary.

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App-based Delivery Workers of Toronto Unite to Fix the Gig Economy

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TORONTO, Feb. 25, 2021 /CNW/ – The Gig Workers United campaign launched today with a bold scope and agenda for change. Delivery workers say the status quo is simply unsafe and unliveable for those whose jobs are controlled by apps. The workers have come together to call on employers and legislators to make fundamental changes.

“We have to stand up for ourselves – the streets don’t look out for us, the apps don’t look out for us, so we’re looking out for each other and collectively calling out a bad business model,” says Narada Kiondo, one of the courier spokespersons. “The way it is just can’t continue – if the gig economy is going to work for our society than it can’t be based on squeezing delivery workers and restaurants for profit, and dodging our labour standards. And we’re going to persist, and we’ll win, because our bodies and our livelihoods are on the line.”

The roots of this struggle are in experiences including the successes of Justice for Foodora Couriers, which showed over the last two years that collective action in the gig economy is possible, that victories are there to be won, and that the organizing campaign itself makes a real difference in workers’ lives. One year ago, the couriers won the legal right to join a union, and the vast majority voted yes.

Foodora, the employer that was the target of that struggle, is no longer operating in Canada, so the workers have broadened their scope in a new drive to organize delivery workers for all the apps. Working conditions, health issues and risks are common, and many couriers work for multiple apps. Now there is a common home for them to work collectively on their demands.

Jan Simpson, National President, spoke about how CUPW has welcomed the delivery workers into the organization: “The couriers have shown that traditional union organizing is possible in this space. But they’ve gone farther than that, with community-organizing tactics and collective mutual aid. They’ve formed a worker-led organization that we’re proud to support because their fresh energy and ideas are what it takes to improve working conditions and reject silicon valley’s model of exploitation.”

“Our demands are reasonable but our vision is big,” says Arash Manouchehrian, another courier. “We need liveable wages, and transparency on wages and scheduling. We need health and safety protections, we need bathroom access, warm-ups, breaks, all the things that most of our society expects as basics for all workers. We have rights, and it’s up to us to assert those rights until we get the system fixed.”

SOURCE Canadian Union of Postal Workers

For further information: please contact CUPW communications at [email protected] or 613-882-2742

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www.cupw-sttp.org

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Gig economy workers demand fair conditions

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James Yang is still angry over the road deaths of five colleagues at work who suffered the same pressure he felt as a food delivery driver.

The Chinese migrant worked for Hungry Panda but says the company booted him off the app after raising concerns about conditions.

Mr Yang earned as little as $12.50 an hour working 12-hour days.

He and fellow gig economy workers met with politicians at federal parliament on Thursday, campaigning for the same rights afforded to other workers.

Labor leader Anthony Albanese believes gig workers should be given the minimum wage and greater scope to access other base employment standards.

He urged the Morrison government to stand up to Uber and Hungry Panda in the same way it took on tech giants over the news media bargaining code.

“What we can’t have is a circumstance whereby we have two industrial relations systems,” Mr Albanese said.

“One that has pay, one that has annual leave, sick leave, one that has conditions that most Australians take for granted, and another whole section of society who are marginalised, who don’t enjoy any minimum wage.”

Industrial Relations Minister Christian Porter said he had a great deal of sympathy for Mr Yang but he’s not going to tell him there’s an easy fix.

He said the Fair Work Commission had consistently ruled gig workers were contractors and not subject to the same conditions as employees.

Mr Porter said media code negotiations with Facebook and Google were years in the making after a consumer watchdog inquiry.

He noted the cost to business of changing the gig model and impact on consumer pricing as key complexities in regulating the sector.

Rideshare driver Malcolm McKenzie said gig workers didn’t have the same avenues to pursue unfair dismissal.

“Drivers face the possibility of termination through the app as a result of a fallacious claim against them, unsubstantiated claim against them,” he said.

Delivery driver Ashley Moreland said he faced losing his job if orders weren’t met on the company’s timeline.

“It really is time that laws caught up to the technology and that we brought some rights to this industry,” he said.

“Because I think it’s a bit of a shame that in a modern developed democracy, we have this situation of third world work.”

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