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How does the Uber decision impact the gig economy as a whole?

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The Supreme Court held that “Uber drivers were not in business on their own account”

We take a deep dive into this judgment which has had a final say on whether Uber drivers (and potentially other gig economy individuals) are workers.

A. ISSUES

  • Were Uber drivers working under workers’ contracts (and therefore qualify for the national minimum wage, paid annual leave and other workers’ rights)?
  • If so, were the drivers working under such contracts whenever they were logged into the Uber app (and not just when they were driving passengers to their destinations)?

B. PROCEEDINGS BELOW

  • The employment tribunal found that the drivers were “workers” as defined under s.230(3) of the Employment Rights Act 1996 (ERA), more commonly known as the limb (b) workers. The tribunal further found that the drivers were working for Uber London during any period when a driver had the Uber app switched on, was within the territory in which he was authorised to work and was able and willing to accept assignments.
  • The EAT and the Court of Appeal dismissed Uber’s appeal of the tribunal decision and the issues ultimately ended up in the Supreme Court. The case was heard on 21 and 22 July 2020 and the judgment was handed down on 19 February 2021.

 

C. BACKGROUND KNOWLEDGE

Section 230(3) ERA

The term “worker” is defined by s.230(3) as:

an individual who has entered into or works under (or, where the employment has ceased, worked under) –

(a) a contract of employment or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.

Limb (b) has three elements:

(i) a contract whereby an individual undertakes to perform work or services for the other party;

(ii) an undertaking to do the work or perform the services personally;

(iii) a requirement that the other party to the contract is not a client or customer of any profession or business undertaking carried on by the individual

This case was concerned with the first element of limb (b) viz., whether there was a worker’s contract. There was no dispute between the parties as to whether the services were performed personally (which they were) and that Uber was not a client or customer of the drivers.

The issue of whether there is a right of substitution in the contract and whether this was actively utilised in practice by the workers is an issue that is more pertinent to the second element of limb (b). This issue did not arise in this case (see below Section E Analysis).

Bates van Winkelhof v Clyde & Co

Lady Hale Bates van Winkelhof maintained that employment law distinguishes between three types of people:

  • those employed under a contract of employment;
  • those self-employed people who are in business on their own account;
  • intermediate class of workers who are self-employed but who provide their services as part of a profession or business undertaking carried on by someone else.

D. SUPREME COURT JUDGEMENT

ISSUE 1: WERE DRIVERS WORKING UNDER WORKERS’ CONTRACTS (AND THEREFORE QUALIFY FOR THE NATIONAL MINIMUM WAGE, PAID ANNUAL LEAVE AND OTHER WORKERS’ RIGHTS)?

The central plank of this judgment centres whether Uber drivers are to be regarded as working under contracts with Uber whereby they undertook to perform services for Uber as opposed to in business on their own account. The conclusion that Uber drivers are workers and not in business on their own account is based on three premises which will be considered below.

1. THAT WRITTEN TERMS OF A CONTRACT BETWEEN THE DRIVERS AND UBER ARE NOT A STARTING POINT IN DETERMINING THEIR WORKER STATUS.

The Supreme Court maintained that to state that a contract is a starting point is at odds with the purpose of statutory protection afforded to workers. Employers are often in a position to dictate contract terms and the individual performing the work has little or no ability to influence those terms that give rise to the statutory protections stipulated under the National Minimum Wage Act or the Working Time Regulations.

This approach is further supported by the fact that there is prohibition on contracting out of such statutory protections as can be found under s.203 (1) ERA which renders as null and void any provision or agreement that purports to exclude or limit the operation of the statute.

2. THE STARTING POINT FOR DETERMINING WORKER STATUS IS THAT ENDORSED IN THE CASE OF CARMICHAEL V NATIONAL POWER.

The House of Lords decision in Carmichael v National Power [1999] 1 WLR 2042 stated that where there is no written contract between the parties or at least where the written contract did not represent the true nature of the relationship, it would be appropriate to look at the following factors:

  • the language of the correspondence between the parties;
  • the way in which the relationship had operated;
  • evidence of the parties as to their understanding of it.

The Supreme Court stated that although written terms should not be ignored they are not to be treated as a starting point for analysis, especially where the bargaining power of the parties means that the individual had no say in drafting the terms and the written agreement would not represent how the parties actually conducted themselves. The Court also maintained that often the objective of the written terms is to circumvent altogether the statutory protections that would otherwise be afforded to the individuals concerned.

3. IN DETERMINING THE STATUS OF AN INDIVIDUAL WORKER, THE DEGREE OF CONTROL EXERCISED EMPLOYER IS OF UTMOST IMPORTANCE: THE GREATER THE CONTROL, THE MORE LIKELY THE INDIVIDUAL WILL BE CLASSIFIED AS A WORKER.

Key indicators of this control are subordination and dependence upon another person (employer) in relation to the work done. The greater the subordination and dependence, the greater the degree of control exercised by the employer.

CONCLUSION

Applying the above analyses, the Supreme Court identified five aspects of the employment tribunal’s findings to support the conclusion that Uber drivers were working for and under contracts with Uber.

  • The remuneration paid to the drivers is fixed by Uber and the drivers have no say in it.
  • The contractual terms under which they work are dictated by Uber.
  • Once logged onto the Uber app, the driver’s choice of accepting or rejecting requests is constrained by Uber, for example if the acceptance rate falls below a certain percentage then a penalty is imposed on the driver by way of being logged out for 10 minute before they can be logged back on.
  • The way the services are delivered by the drivers is tightly controlled by Uber, for example under the rating system, if it falls below a certain level for a period of time Uber can effectively terminate the contract with that driver.
  • Restriction of communication between driver and customer means that the drivers have little or no ability to improve their economic position through professional or entrepreneurial skill other than working longer hours whilst constantly meeting Uber’s measures of performance.

ISSUE 2: WERE THE DRIVERS WORKING UNDER WORKERS’ CONTRACTS WHENEVER THEY WERE LOGGED INTO THE UBER APP (AND NOT JUST WHEN THEY WERE DRIVING PASSENGERS TO THEIR DESTINATIONS)?

Put the question another way: during what periods where the drivers working?

The tribunal at first instance found that a driver was working under a worker’s contract when:

  • he had the Uber app switched on;
  • he was within the territory in which he was authorised to use the app; and
  • he was ready and willing to accept trips

Uber argued that the drivers were only working under workers’ contracts when they were actually driving passengers to their destinations. This is because, they argued, the driver had a right to turn down work even when they were logged onto the app and so the driver had no contractual obligation to undertake work for Uber whilst logged onto the app.

The Supreme Court rejected this argument on several grounds:

  • that the driver has the right to turn down work does not preclude a finding that he is employed under a worker’s contract so long as there is an “irreducible minimum of obligation” i.e. if there is an obligation to do some work, then the right to turn down work is not fatal.
  • the Welcome Packet issued to drivers at the start referred to logging onto the Uber app as “going on duty” and instructed drivers that “Going on duty means you are willing and able to accept trip requests“.
  • in reality, there was more than an irreducible minimum of obligation because a penalty would be imposed on those who turn down work too often.

E. ANALYSIS

This judgment is consequential not least because it does not just affect Uber but the companies in the wider gig economy which will have to (if haven’t done so already) review and rearrange their working model, in some cases quite drastically. As part of this effort, any analysis that relied on previous judgments that focused on the right of substitution will have to be adjusted to take into consideration this judgment. Although the substitution analysis is relevant to the second element of limb (B) under s.230(3) ERA (namely, personal service), this judgment will form the bedrock of determining the worker status going forward.

A key takeaway is that the Supreme Court has somewhat relegated the importance of written agreements between the parties as a mere factor to consider, and not a starting point for substantial analysis. This does not mean that employers should pay less attention to the written agreement but it does mean that the employers have to place greater weight and effort into aligning the written agreement with the actual practical aspects of how the workers work.

Another key commercial impact of this judgment is that attempts to maintain the quality of their brand will likely be construed as tools for control that enhance subordination and dependence of workers on the organisations.

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Gig Economy Market 2021 | Covid19 Impact Analysis | Business Outlook, Growth, Revenue, Trends and Forecasts 2026

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Gig Economy Market
A new business intelligence report released by Qurate Research with the title “Global Gig Economy Market Research Report 2021” that targets and provides COVID-19 Outbreak comprehensive market analysis with prospects to 2026. The analysts of the study have acquired, extensive research methodologies and data sources (i.e. Secondary & Primary Sources) to generate collective and useful information that delivers the latest market undercurrents and industry trends. The report provides a comprehensive overview including Definitions, Scope, Application, Production and CAGR (%) Comparison, Segmentation by Type, Share, Revenue Status and Outlook, Capacity, Consumption, Market Drivers, Production Status and Outlook and Opportunities, Export, Import, Emerging Markets/Countries Growth Rate. The report presents a 360-degree overview of the competitive landscape of the industries.

The report evaluates the global Gig Economy market size, share, and growth rate and provides an accurate projection for similar facets by thoroughly studying historic as well as the current status of the market. The report presents a market analysis based on revenue and sales volume. It also allows for gaining comprehensive acumen in upcoming business opportunities, obstacles, threats, and hindering factors in the market.

Besides, the report sheds light on the significant evaluation of leading contenders who have been performing in the market to satisfy the desired needs and anticipations of end-users. The report offers in-depth insights into leading market players, alongside their corporate and organizational profiles, financial details, manufacturing methodologies, and so forth. Statistical details in terms of revenue, sales volume, profit margin, and CAGR have been included in the report. Additionally, the report comprises recent strategic and tactical moves that help to form their own lucrative business stratagem and make profound business decisions.

This report categorizes the market based on manufacturers, regions, types and applications.

A thorough assessment of leading manufacturers including their profiles, pricing structure, and product specifications of Gig Economy Market:


TaskRabbit
BellHops
Guru.com
HopSkipDrive
Freelancer
Rover
Upwork
Fiverr
DoorDash
Favor Delivery
Turo
Twago Enterprise
Handy

Key Market Segmentation as follows –

Type Segmentation

(APP-based, Website-based)

Industry Segmentation

(Freelancer, Independent Contractor, Project Worker, Part-Time)

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Market Segment by RegionsNorth America (United States, Canada and Mexico), Europe (Germany, France, UK, Russia and Italy), Asia-Pacific (China, Japan, Korea, India and Southeast Asia), South America (Brazil, Argentina, Colombia etc.), Middle East and Africa (Saudi Arabia, UAE, Egypt, Nigeria and South Africa)

Additionally, the report discusses provincial trade frameworks, entry barriers, and varying economic structures.

Moreover, the report presents industry overview in a portrayed view to offer a wide acuity of the global Gig Economy market. It also provides a detailed analysis based on a competitive landscape that aids a reader to obtain a thorough perception of competitive advantages, contender’s missions, core values, and niche markets. It also highlights how the Gig Economy market is associated with its peer and parent market. Further, the report illuminates its impacts on the international economy throughout the period between 2021 and 2026.

If you are involved in the Global Gig Economy industry or intend to be, then this study will provide you a comprehensive outlook. It is vital you keep your market knowledge up to date segmented by major players. If you have a different set of players/manufacturers according to geography or needs regional or country segmented reports, we can provide customization according to your requirement.

The Global Gig Economy Market Report Enfolds:

• Extensive delineation of Gig Economy industry overview.
• Cardinal synopsis of every leading contender performing in the global Gig Economy market.
• Statistical assessment of Gig Economy market size, share, revenue, growth rate, and sales volume.
• Precise details based on Gig Economy market segmentation.
• Valuable information on the changing-pricing structure.

Major Points Covered in TOC:

Gig Economy Market Overview
Gig Economy Market Segment by Type
Gig Economy Market Analysis by Applications
Gig Economy Market Analysis by Regions
Gig Economy Market Dynamics
Gig Economy Manufacturers Profiles
Gig Economy Market Forecast (2021-2026)
Sales Channel, Distributors, Traders and DealersResearch Findings and Conclusion

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Note: In order to provide more accurate market forecast, all our reports will be updated before delivery by considering the impact of COVID-19.

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What freelancers should know about navigating the gig economy

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In this episode of In The Know’s Getting Rich, financial expert Carmen Perez chats with certified financial planner Brittney Castro on everything freelancers should know about the gig economy.

The gig economy refers to freelancers, contractors or anyone with a specialized skill set including graphic design, home repairs and web development. But freelancers have to consider things full-time works may not have to, like the cost of private insurance and setting aside taxes. When you’re self-employed understanding personal finance can make or break you but it can also offer you freedoms a nine to five can’t.

“The main feature of this type of work is freelancers get to take on as much or as little work as they want, set their own pay and generally work across a variety of different industries,” Perez said.

A common misconception Castro, the founder of Financially Wise Inc., runs into with freelancers is the belief that creatives can’t handle the financial side of things.

“Creativity is so valuable with finances and wealth creation. If you just stop saying that and take the time to learn and get yourself empowered, you’ll probably be really good at managing money,” Castro said.

So to ensure you get all those sweet freelancing perks, you’ve got to be prepared.

“Make sure you have a separate account for taxes. All and any money that you make, [make sure] you’re setting aside the right amount of taxes for that,” Perez said.

Keeping records in one place whether it’s QuickBooks or a notebook, will make things that much easier on tax day. 

Another piece of advice from Castro was to think of yourself like a business from day one.

“Separate your business and personal checking accounts right away. Have a business name, have a business entity,” Castro said. “Maybe you have to learn bookkeeping, maybe you have to learn health insurance, learn about benefits. It can be frustrating and challenging but with those learning curves you get empowered and you keep going.”

During slow periods when less work is coming in, Perez recommended an emergency fund to ensure bills get paid.

For freelancers who are past the beginner stage and ready to level up, Castro suggested to start investing.

“Investing in things that will grow your money faster than your savings or checking account is the name of the game,” Castro said. “Start with one, figure out where your natural interest lies, focus on that investment category. Then commit to constantly learning.”

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Almost two fifths of gig economy workers get less than a week’s notice over shifts or work patterns

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Close to two-fifths  of UK workers in full or part-time employment are given less than a week’s notice of their shifts or work patterns, according to new research conducted by the Living Wage Foundation. 

The research – based on two surveys, of over 2,000 UK adults in each case[1] – addresses a gap in the UK’s labour market data and understanding of hours insecurity, being the first recent study to assess notice periods for work schedules across the workforce.[2]

The study found that among the 59% of workers whose job involves variable hours or shift work, over three-fifths (62%) reported having less than a week’s notice of their work schedules. At the extreme, 12% of this group – amounting to 7% all working adults – had less than 24 hours’ notice.

While short notice periods affect workers throughout the UK, they are particularly common in London, where almost half (48%) of all workers received less than a week’s notice of work schedules. Scotland (35%), the South of England excluding London (34%), and the North of England (33%)  are areas where short notice periods were less common.

A second survey conducted by the Living Wage Foundation homed in on the experience of full-time, low-paid workers, finding that they were particularly hard hit by short notice of working hours. Of those working full time and paid below the real Living Wage of £10.85 in London and £9.50 in the rest of the UK, more than half (55%) had less than a week’s notice of work schedules, with 15% having less than 24 hours’ notice. Low-paid, full-time workers from Black, Asian and minority ethnic backgrounds[3] (68% of whom had less than a week’s notice of work patterns) and those with children (64%) were also disproportionately affected.

Laura Gardiner, Director, Living Wage Foundation, said:

“Without clear notice of shift patterns provided in good time, millions of workers have had to make impossible choices on childcare, transport and other important aspects of family life. Low-paid workers have been particularly hard hit during the pandemic, with millions struggling to plan their lives due to the double whammy of changing restrictions on economic activity and insufficient notice of work schedules from employers.

Despite this, and the challenges many employers have faced, some have stepped up during this crisis and committed to provide workers with secure, guaranteed hours and notice of shift patterns. These are the businesses that will help us rebuild and recover, and we encourage more employers to follow their example.”

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