In this episode of the Computer Weekly Downtime Upload podcast, Caroline Donnelly and Brian McKenna are joined by Sebastian Klovig Skelton to discuss the legal fight of Uber drivers for the right to be recognised as workers, with statutory rights to sick pay and holiday pay.
Before they get into the substance of the episode, and after some natter about what they are looking forward to most post-lockdown, they register a hugely important event on the day of recording, Friday 23 April 2021.
For on that day, 39 subpostmasters had their spurious convictions for alleged financial crimes quashed at the Court of Appeal. The subpostmasters and subpostmistresses had been accused of theft, fraud and false accounting because their takings did not tally with the Horizon computer system from Fujitsu that the Post Office had installed in 1999.
Their names have now been cleared. It is a massive story of computer-enabled injustice that Computer Weekly – specifically and mainly our colleague Karl Flinders – has been covering since 2009.
One convenient way into the story is to listen to our podcast about it, published on 23 February this year, under the title Post Office Horizon and the subpostmasters’ justice fight.
In another discussion about working people pitted against organisations with a lot of clout, Sebastian, Caroline and Brian then spend the rest of the episode discussing the Supreme Court ruling of 19 February 2021, by which Uber must classify its 70,000 drivers as workers, entitling them to normal workplace conditions and protections for the first time.
A big character in this fight is Yaseen Aslam, a former Uber driver who was “deactivated” by Uber after he started organising with other Uber drivers for better conditions.
Aslam is now president of the App Couriers and Drivers Union (ADCU), and he was one of two original claimants in the 2016 employment tribunal case that ruled them to be workers, not self-employed contractors, and which Uber fought all the way to the Supreme Court.
Caroline gets the discussion under way with some remarks about the wider significance of the Uber case in the context of the UK gig economy, where Deliveroo and Addison Lee have also met with, respectively, investor withdrawal and a legal check. She underscores the complexity of the UK employment scene, with self-employment not being defined clearly enough in British law.
Seb points out that there are five million-plus gig economy workers in the UK who should now, by virtue of the ruling, be paid the national minimum wage, receive the statutory minimum holiday pay and rest breaks, be protected from unlawful discrimination and have whistleblowing rights.
Since the ruling, Uber has conceded that drivers will now receive holiday pay equal to just over 12% of earnings every two weeks; are entitled to automatic enrolment in a workplace pension scheme; and will now earn at least the National Living Wage of £8.72 an hour.
However, although the Supreme Court explicitly ruled that drivers are “workers” from the minute they log on to the app to the minute they log off (which means they should be paid from when they become active, not simply when passengers are on board), Uber decided that the higher wage will only apply “from the time you accept a trip on the app to the point at which the trip completes”.
On the podcast, Seb relates how the legal battle is continuing to make Uber stick to the letter of the law. He also notes that the company’s CEO, Dara Khosrowshahi, has framed the company’s changes in drivers’ pay and benefits as a choice, saying: “Our thinking on this issue [of drivers’ employment status] has evolved over time, and I will be the first to admit that we’ve struggled to identify solutions that work for Uber and for those who earn on our platform.”
Caroline notes that while companies can try to insist that the working relationship they have with their employees or self-employed contractors are one thing or another, the realities of how their working relationships are conducted in practice makes all the difference – and that is what can be challenged in the courts.
As well as the Uber case, there is also the Court of Appeal dismissal, referred to above, of an appeal by taxi firm Addison Lee to challenge the ruling of a 2017 employment tribunal that confirmed three of its drivers should have been granted worker status. This seems to be a watershed moment for the gig economy.
Caroline also raises the ethical dimension from a user point of view. In our quest for low-cost convenience, should we not all, as consumers, have been questioning a bit more the mechanics of the working arrangements of drivers, riders and delivery workers?
The podcast participants agree that we should, and Seb makes the point that if Uber prices go up and you don’t like it, you can alway take the bus.
Seb also provides more detail in the podcast about Yasleen Aslam’s particular story, and that of his co-claimant, James Farrar, and comments on the racism that many Uber drivers, most of whom are from black and minority ethnic backgrounds, face on a day-to-day basis.
Unions, and relatively new ones at that, have played a crucial role in enabling drivers and couriers to fight for a better deal in the gig economy. Partly this is about traditional trade union issues such as pay and conditions, but it is also about more “digital” concerns, such as drivers getting courts to rule in their favour in terms of obtaining data about them from companies, and getting insights into how their algorithms work.
Another example is that the ADCU identified seven cases of Uber drivers losing their jobs and subsequently having their licences revoked by Transport for London as a result of the company’s Real-Time ID Check facial-verification system failing to recognise their faces.
The biggest takeaway from the role of unions, such as the ADCU and the Independent Workers Union of Great Britain, resisting in the gig economy, says Seb, is that taking on companies like Uber and Deliveroo is a very time- and energy-consuming process and so they provide a necessary support network. Also, a union like the ADCU is led by workers who know the gig economy inside out. And legal action is expensive.
Caroline raises the possibility that there might be scope for new challengers to enter the markets in which Uber, Deliveroo et al operate and disrupt the disrupters by making the fact that they employ their riders or drivers directly and pay them the minimum wage, if not more, a selling point.
Seb agrees that if there is an ethical option, younger people especially will go for that – but it has to exist in the first place. He posits a driver-controlled version of Uber. After all, the company doesn’t own the cars, and has made a virtue of that historically, in the so-called app economy.
