In the aftermath of recent strikes by couriers for Deliveroo and UberEATS, there seems to be a growing consensus that gig workers would be better off if they were actually employed by the platforms they find work from. However, as more employers are exposed for exploiting their staff, it’s not clear that reclassifying gig workers as employees would necessarily improve their pay and conditions.
Last December, a Guardian investigation into the working practices of Sports Direct revealed that agency workers in the retailer’s warehouses were effectively paid below minimum wage. While agency workers tend to be temporary, they are still entitled to most employment rights, such as a guaranteed minimum wage, statutory sick pay and paid holidays. Sports Direct was found to be breaching these rights because agency workers were being docked 15 minutes of pay for clocking in a single minute late, irrespective of whether they had arrived at the site on time. Workers were also denied extra pay when clocking out late, even if they were finishing up a job, as well as compensation for the time that they spent completing compulsory security checks at the end of their shifts.
As of last week, similar allegations of employer misconduct were levied by BuzzFeed News against Asos, the online fashion retailer. Although BuzzFeed also alleged that Asos has been in breach of employment rights pertaining to minimum wage, their focus was on the target-driven culture at the warehouses where workers liken themselves to machines. Workers are expected to meet hourly performance targets for packing orders using scanners that enable management to track their speed as they move among the shelves. Staff reported that they weren’t able to take regular toilet or water breaks for fear of missing targets, sometimes because managers had explicitly requested that they refrain, particularly in the final working hour. There were also claims of workers being penalised for sickness or taking time off to care for loved ones.
Under the law, companies that do not pay the minimum wage can be prosecuted and employers found guilty may be subject to prison sentences in addition to fines. Since 2014, only three of 700 employers in breach of the law have been prosecuted. Overall, these companies underpaid more than 13,000 workers by over £3.5m. Supposedly, the high costs of prosecution and delays that prosecutions can cause in securing back pay for affected workers are deterrents to bringing criminal cases. Yet, during this period of low enforcement the National Audit Office has found that the number of workers owed arrears has more than doubled from 2014-15 to 2015-16, rising from 26,000 to 58,000. Perhaps most unsettling of all is that while there is a failure to use the mechanisms in place to ensure that the minimum wage is paid, there simply are no mechanisms for addressing issues arising from a target culture, such as stress and anxiety.
Arguably, gig workers have more freedom and flexibility than the employees in the warehouses of Sports Direct and Asos. This does not necessarily mean that they have full autonomy over their schedules, but they do have more agency; for example, Deliveroo couriers must work at least two shifts across Friday, Saturday or Sunday, but they choose when those weekend shifts are according to their own availability. Whether these platforms are exercising control over workers to the degree that traditional employers would is a matter currently being debated in court. It’s not a cut and dry binary, however; the trade union GMB has filed a class action against Uber on behalf of 100 drivers, but are making the case that they fall under a third category: workers under a directive. The ambition here is to retain the freedom and flexibility that is increasingly valued by workers while also ensuring that they’re protected.
At the RSA, we’re currently undertaking research to find out how many people in the UK are now gigging for online platforms in the sharing economy, learn more about their experiences of work, and make sense of their relationships to platforms as workers. Our Chief Executive Matthew Taylor was just appointed as Chair of an independent review into ‘non-standard work arrangements’, or essentially a review into modern forms of work, including the changing nature of self-employment and the use of zero-hour contracts. While the review will cover far more forms of work than gigging, it speaks to the growing significance of gigging in our economy. The RSA’s research will unpack the complexity of gig work, and will hopefully help resolve the million-pound questions of whether or not workers are self-employed and how they can be best supported by government, platforms and civil society. This will go beyond making recommendations about pay, exploring how to tackle issues of insecurity while also advocating for greater agency and autonomy in work.
There are now an estimated 1.1 million people in Britain’s gig economy, which is nearly as many workers as in the National Health Service (NHS) England. Brhmie Balaram introduces our latest report into the gig economy.
As a lawyer who works as an employee in-house for the RSA and spent some ten years as a self-employed barrister, here are my personal thoughts on the Uber judgment.