Last Friday, the Supreme Court ruled that Uber drivers must be treated as workers rather than self-employed contractors. This distinction is important given that workers have various protections that are not afforded to the genuinely self-employed, including the right to be paid the national minimum wage and the right to paid holiday. The precedent set by this ruling could have sizeable implications for the future of the gig economy in the UK. Similar platform businesses may review their own business models in response, rebalancing the degree of control gig workers hold over their tasks and working patterns.
Shortly after the ruling was announced, Uber published its response, maintaining that the decision only applies to the drivers directly involved in the case, and announcing a nationwide consultation with current drivers, to understand what they value about working via the platform, and crucially, where things need to improve. This review is likely to look at allowing drivers to access data stored about them and the algorithms used to allocate their work – a key fault line in the debate on gig worker rights.
Uber, Deliveroo and other platforms rely on algorithms to allocate, monitor, evaluate and reward work. Indeed, this reliance formed a key component of the ruling that was handed down by Lord Leggat last week, in which he highlighted that the platform ‘exercises a significant amount of control over drivers, including penalising those whose acceptance rate falls below Uber’s expectations’ and that it ‘dictates the way in which drivers should deliver their service and uses a rating system to manage this.’ In other words, the use of algorithms tips the balance of power in this relationship overwhelmingly towards the platform. Although the worker knows that the app is collecting data on them, they do not know how that data is being used to make decisions about their work, and crucially have no meaningful way to appeal those decisions.
A bill defeated in the French Senate last year would have introduced a right to information regarding the algorithms used to determine when and how work is allocated. However, this issue could be back on the table sooner rather than later for policymakers in France and across Europe, with improving the working conditions of people working in the platform economy recently confirmed by Ursula von der Leyen as a key EU initiative for 2021.
Furthermore, the App and Couriers Drivers Union and Worker Info Exchange have been working together to collect and pool app-driver data in order to gain collective power in dealings with the companies. They filed a lawsuit last year on behalf of drivers using two different apps, requesting access to ‘secret worker performance profiles’ and ‘fraud probability scores’ that they claim neither company wishes to disclose. An additional suit was filed against Uber on behalf of drivers from the UK, the Netherlands and Portugal who claim they were ‘algorithmically fired’ for unspecific allegations of fraud, that they each deny but have had no meaningful opportunity to appeal.
The outcomes of these cases could have wider implications for workers across the labour market. Algorithmic management and worker surveillance are increasing beyond the gig economy. In 2015, the extent of algorithmic management in Amazon warehouses was revealed, which included the use of a software system called the Anytime Feedback Tool, that allowed workers to share praise or criticism about their colleagues, feeding into an internal ranking system that informed performance reviews. Additionally, handheld devices used by warehouse pickers count down the seconds they have to retrieve the next product, in order to meet their performance targets. This trend has accelerated since the onset of the pandemic last year, with research commissioned by the TUC finding that more than 1 in 7 (15%) employees have reported that monitoring by their employer has increased since the pandemic began in March 2020. The research also found that workers on insecure contracts were more likely to report being monitored, with 33% saying they felt their activities at work were monitored at all times, compared to just 20% of those in secure work who said the same.
Overall, it is positive to see that last Friday’s ruling strengthens the case made in the Taylor Review for greater fairness for those who work through platforms. However, more now needs to be done by government in the upcoming Employment Bill to prevent exploitation and protect workers from insecurity, while preserving the flexibility and autonomy that platform work affords. Government should also seek to understand the wider implications of algorithmic management and surveillance on workers across the labour market that this case has raised. It is vital that in embracing new technologies to improve productivity in the workplace, workers’ rights are not put at risk.
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