Last week, we finally received the long awaited ‘Uber’ judgment by the Employment Tribunal that has been widely reported in the press. This is an area of policy that the RSA is currently researching, but also our CEO Matthew Taylor has been asked by the Prime Minister to lead a Review on Modern Employment. As a lawyer who works as an employee in-house for the RSA and spent some ten years as a self-employed barrister it is particularly interesting and relevant. Here are my personal thoughts on the judgment.
1. How do we define 'workers'?
The argument in a nutshell is over whether Uber employees can be defined under UK law as ‘workers’ or are properly defined as self-employed. The reason that this is important is that once an individual moves into the ‘worker category’ they receive a number of rights including eligibility for the national minimum wage, rest breaks and protection against unauthorised deductions from pay and discrimination.
The judgement throws up how unclear this definition of ‘worker’ is and it is worth understanding why; put simply there is no single source of legislation which sets out a specific set of labels, rights and the circumstances when they might accrue, in fact this area of law is a whole patch work of legislation.
An individual can, depending on their circumstances, be employed; a lesser protected ‘worker’, or self-employed with huge grey areas between. To further complicate matters they may be in a different position depending on the particular right they are seeking to uphold.
If nothing else reading the judgement makes the case for some form of clarification/simplification that would be helpful to both employers and employees.
2. The Uber verdict is just a first step
Despite what the press has written about the judgement, it is worth underlining that the judgement does not change anything and represents merely the first salvo in what will be a long period of litigation. The Employment Tribunal is the court of first instance, and it is now likely to wind its way through the Employment Appeal Tribunal, Court of Appeal and potentially the Supreme Court. During that process, the law will become honed and nuanced.
This underlines how unsatisfactory this is as a way of actually protecting workers with the onus being on the worker to have to litigate. Surely in the 21st century, we can come with a better arrangement. One simple suggestion is for those under a certain income to default to the position of ‘worker’ and for the employer to have to then justify the argument that they are self-employed.
3. Limitations of the courts
Perhaps an obvious point, but one worth mentioning is that courts are generally neither a good nor a speedy way for the law to be shaped. As every litigator knows, a case can only attempt to address the narrow circumstances found within it and does so from the constraints of the existing framework. Good lawyers pick and choose the battles very carefully. While ultimately two years from now we might be looking a clarification of the rights of workers surely this and its long gestation shows why the government and civil society needs to act more quickly and more widely, as my colleague Brhmie Balaram writes.
4. Repackaging worker rights for the 21st century
Reading the judgement and the previous case law cited, it is clear that while there is an attempt by Uber to describe itself as a novel empowering force in many terms it is an old-fashioned powerful market force which can wield substantial control over its drivers. There are similarities to the 19th century and 20th century and the corporate behaviour that led to employment and worker rights in the first place. During the 19th and 20th centuries, there were also examples of companies that led the way in protecting workers and creating new standards which helped shape worker rights we now have today. The hope is that the dynamism and disruptive change of companies such as Uber can be used to find new and novel ways to help those working for them.
5. Disruptive technology and the courts
Finally, the judgment goes into some detail both of the terms and conditions of its drivers but also the day to day working practices of the company.
One example it confronts is that of Uber’s position that it exercises ‘minimal control’ over drivers, which Uber examples by saying that they give a driver total control over the route they take. The court challenges this position pointing out that drivers rarely deviate from the route they are given by the Uber app.
What we see in the judgement is an example of the legal system grappling with new disruptive technology. It will be interesting to watch this grappling as it moves through the court system, but it also reinforces point three above that government and civil society need to act more quickly. Technology will in the meantime be continuing to disrupt, change and challenge.
Find out more about the RSA's research on the gig economy.
Nicholas Bull worked exclusively as a barrister at the self-employed bar from 2004 to 2012. He now works in an advisory capacity as a qualified lawyer providing general legal support to the RSA; his expertise covers corporate and charity governance and practice, data protection, information law and intellectual property.