The five-year le­gal fight that could change Uber and the gig econ­omy

The Daily Telegraph - Business - - Technology Intelligen­ce - MATTHEW FIELD

For the driv­ers bat­tling Sil­i­con Val­ley gi­ant Uber, it has been a bru­tal, five-year strug­gle. A land­mark le­gal fight, which started as a sick pay and hol­i­day dis­pute in an em­ploy­ment tri­bunal, en­tered its fi­nal throes in the Supreme Court yes­ter­day.

Driv­ers are ar­gu­ing that they are “work­ers” en­ti­tled to the min­i­mum wage, paid leave and other le­gal pro­tec­tions. Uber says that they are “in­de­pen­dent third party con­trac­tors”.

“We have been fight­ing this case for five years,” says Yaseen As­lam, who drove for Uber and is one of the claimants, “what we are see­ing here is work­ers be­ing de­nied their rights.”

If the claimants win, it could pave the way for tens of thou­sands of fur­ther claims from free­lancers who work us­ing apps with vague terms of use or no con­tracts.

James Far­rar, an­other claimant, warned that if they failed, driv­ers and other gig econ­omy work­ers would be at risk of “a se­ri­ous and rapid de­te­ri­o­ra­tion in work­ing terms”.

Paul Jen­nings, a lawyer for Bates Wells, which is rep­re­sent­ing As­lam and Far­rar, says: “It is not an over­state­ment that it has huge im­pli­ca­tions for the gig econ­omy as it is the first one that has gone to the Supreme Court.”

The dis­pute with Uber dates back to a late-night row with dis­rup­tive pas­sen­gers in 2015, ac­cord­ing to an ac­count Far­rar gave Wired. Far­rar con­tacted the po­lice af­ter a group of drunken pas­sen­gers ver­bally abused him. At the time, Far­rar says Uber didn’t ful­fil its duty of care, and failed to co-op­er­ate with the po­lice be­cause it con­sid­ered him to be self-em­ployed.

Uber ar­gues it does not have an em­ployer re­la­tion­ship with driv­ers, rather it acts as an agency, like a gi­gan­tic mini­cab firm. Driv­ers, ac­cord­ing to its li­cens­ing agree­ments, use its app to pick up pas­sen­gers, while Uber takes a cut of the fees that gen­er­ates. They can choose when they work and can log off when they like, Uber claims, and they have no obli­ga­tion to drive.

Di­nah Rose, Uber’s QC, told the Jus­tices there was “noth­ing in­con­sis­tent... whereby driv­ers con­tract di­rectly with pas­sen­gers” in Uber’s user agree­ment.

“In the con­text of the pri­vate hire in­dus­try there are many ex­am­ples of ex­actly this char­ac­ter that have been up­held as gen­uine.”

But the em­ploy­ment tri­bunal pre­vi­ously found that driv­ers were in fact work­ers. Among other find­ings, the tri­bunal ruled that Uber’s power to re­move driv­ers from its app if they re­jected too many trips obliged them to do work. It fur­ther ar­gued Uber’s driver agree­ments re­sorted to “fic­tions, twisted lan­guage and even brand new ter­mi­nol­ogy”. Lawyers for the claimants al­lege the con­tracts were a “sham” and an “at­tempt to dis­guise an em­ploy­ment con­tract”. The lat­est ap­peal is com­ing up against a dif­fi­cult le­gal prece­dent. Top UK judges ruled in 2018 that Lon­don-based Pim­lico Plumbers should have treated one of its trades­men as a “worker,” giv­ing him the right to hol­i­day pay and to sue the com­pany.

That same year, taxi ser­vice Ad­di­son Lee lost an ap­peal over whether driv­ers were in­de­pen­dent con­trac­tors or em­ploy­ees with rights to ben­e­fits.

If the driv­ers in Uber’s case are found to be work­ers, they could be en­ti­tled to £12,000 on av­er­age, says one of the law firms in­volved.

But the im­pli­ca­tions could be wider still. Tens of thou­sands of other Uber driv­ers may con­sider whether they have a claim for lost pay. It could also change how Uber charges for rides. In some cities in the US, Uber has in­creased fees in places where driv­ers are no longer treated as free­lancers. It could also in­spire more of the 5.5m peo­ple in the UK em­ployed in the so-called gig-econ­omy to in­spect their own work­ing agree­ments, or lack of them, and ask if they are owed some­thing. This would be a ma­jor fight back against what As­lam called the “Uberi­sa­tion” of many jobs in Bri­tain’s econ­omy. He wants new rules, ei­ther from Par­lia­ment or from Trans­port for Lon­don, the reg­u­la­tor, to pro­tect the rights of driv­ers.

“Why has it fallen on us to fight such a lengthy bat­tle? The point is pre­car­i­ous work­ers do not have the re­sources to fight a com­pany such as Uber. Just be­cause peo­ple are des­per­ate, does not mean that this is OK,” he says. The case con­tin­ues today. A judg­ment is not ex­pected for more than a month.

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