In the second article of the Law Network's ongoing Blog Series, Thomas Fawns discusses the significance of the UK Supreme Court's recent unanimous ruling that Uber drivers are workers.
The Young Fabian Law Network have introduced a new blog series examining a number of policy areas through a legal lens. This will cover many of the key questions facing the party and Britain today, including where should power lie in our public spaces and workplaces, how should our citizens be dealt with by our government and our governments deal with each other, and how can legal tools be used to solve common problems like climate change. Join us each month for an instalment and if you are interested in writing a piece in collaboration with a Law Network member on the intersection between law and your own field, please contact our Chair John Morgan at [email protected]
After a gruelling four-year legal battle, the UK Supreme Court has unanimously dismissed Uber’s appeal to classify their drivers as self-employed. Instead, they ruled in favour of classifying Uber drivers as workers. But why does this matter?
Some relationship advice
Most of us are obsessed with relationship advice to a certain extent: "If you can’t handle me at my worst, you don't deserve me at my best!" But in a way, this strikes at the heart of what employment law is all about. UK employment law is considered to be one of the fastest-moving areas of law for multiple reasons, all of which interact with one another to varying degrees. Nonetheless, this can be sufficiently explained due to the sheer complexity that can arise from contractual relationships.
On top of this, technological innovation continues to dramatically reshape the workplace and our global economy. Arguably creating a ‘new frontier of work’ dominated by big-tech giants who entice us with ‘flexible hours’ determined by algorithms within the emerging gig-economy. (Here be dragons). Despite this uncertainty, what we do know is that our tribunals, courts and legislators are constantly trying to keep up. The greatest advocates amongst them work tirelessly in order to clamp down on the creative use of loopholes being exploited by a minority of mischievous employers.
However, the overwhelming majority of employers too are demanding legal certainty in this brave new world, so they can avoid breaching any laws by accident, and ensure that the individuals working for them have their needs truly prioritised. Uber is not amongst this group of mindful employers, they operate differently, their court appeals reveal a cynical attempt to continue exploiting the individuals working for them by design. Thankfully, the judges were having none of it, they are meeting the demands of legal certainty where our legislators cannot.
‘Goliath and Others v David and Others’
Yesterday’s case of Uber BV and others v Aslam and others  UKSC 5 concludes Uber’s numerous attempts as a big-tech giant to classify their drivers as self-employed. But why did they fight so hard for this?
At best, Uber’s motivations are simple enough to understand: to preserve its billions of dollars. But more importantly, this was a win-or-lose fight over the status of individuals working for them. As a gig-economy company, the issue is whether in the total absence of ‘employee’ status (the optimal individual status granting access to all statutory rights), can Uber drivers claim to be ‘workers’ (the next best individual status) so they can claim the national minimum wage, right to paid holidays and a variety of other beneficial rights? If not, the drivers are to be deemed ‘self-employed’ effectively prohibiting them from access to any statutory rights at all.
Uber appealed on the grounds that their business-model (‘dynamic-pricing’) offers greater flexibility for their drivers; therefore, the driver’s status in the contractual relationship is akin to being ‘self-employed’. Furthermore, Uber’s contractual arrangement claimed its drivers are permitted to work with other companies, must maintain their own vehicle, arrange their own licensing, and view themselves as self-employed for tax purposes. To award some initial credit to Uber’s grounds of appeal, unlike other typical gig-economy companies, there is no Uber logo printed on the vehicles and the drivers do not wear a shiny uniform. They argue they are just another high-tech company, merely providing an app service for willing drivers to use.
However, upon greater scrutiny, Uber’s contractual arrangement was found to be designed in such a way as to pre-emptively negate their legal liabilities. In contrast to Uber, the successful claimants are former Uber drivers: James Farrar and Yaseen Aslam, who also form the leadership of the App Drivers & Couriers Union (ADCU). They won this case based upon the application of the ‘reality of relationship’ test held in Autoclenz Ltd v Belcher  ICR 1157. This test outlines that in order to prove the nature of employment contract, the relative bargaining power of the parties must be taken into account to decide whether the documented terms ‘truly represent what was agreed.’ The claimant’s successful application of this test was achieved all the while being encouraged along the way thanks to the solidarity shown by sympathetic workers, lawyers, trade unions and activists.
Why does this verdict matter?
This verdict may have far-reaching consequences for other gig-economy workers, particularly within the context of Covid-19. As demand for couriers and delivery drivers has increased, creating an immense strain on their health, these key workers could rely on this verdict as clear authority. Despite the patronizing treatment key workers continue to endure during the pandemic, thanks to this new precedent, they can now put pressure on their employers to ensure they too meet increased responsibilities to prioritise their working conditions and well-being.
Our statutory rights that impose duties on employers, exist due thanks to the culmination of decades of struggle. Historical events only yesterday and many more stretching back to the first industrial revolution show how this contractual relationship can be exploited, in the worst cases abused, in favour of employers who command greater power. Trade unions exist precisely because of this potential exploitation and continue to offer safety in collective strength and legal support to fight for the interests of their members. I highly suggest joining a union today if you haven’t done so already: https://findyourunion.tuc.org.uk
Lastly, what also makes employment law unique is its vulnerability to political decisions. It is no secret that Conservative governments prefer to side with the interests of wealthy business owners. To accuse them of ‘putting profit before people’ would be tired cliché were it not proven time-and-time again. Merely a few years ago, their introduction of employment tribunal fees actively prevented workers from access to justice. Eventually, these fees were held to be unlawful by the High Court in R (UNISON) v Lord Chancellor  UKSC 51. Even today there are rumours circulating that the Conservatives wish to reintroduce tribunal fees yet again!
Whilst it is highly encouraging to see the judicial system back our workers, it also remains our duty today on the left, to always side in solidarity with workers against all forms of exploitation.
Thomas Fawns recently completed his postgraduate studies at the City Law School. He has a keen interest in employment, housing and criminal law. He is Secretary of the YF Law Network, Policy Officer for the YF Criminal Justice Network and tweets @thomasfawns