The Supreme Court will rule tomorrow on whether Uber drivers should be classed as "workers" rather than independent contractors, which would entitle them to rights and protections including the minimum wage and holiday pay. While it’s not uncommon for the Supreme Court to overturn decisions, Uber has lost at every stage of this case so far. Although the decision will only directly apply to the 25 drivers who brought the case to the courts, it will set a precedent for how gig workers are treated in the UK. Similar claims from other drivers will be able to progress, and the contractual terms of other businesses operating in the gig economy will likely be reviewed. Therefore, the long-running dispute, which started its journey through the courts in 2016, could have sizeable implications for the future of the gig economy.
While gig workers are legally self-employed, in reality the extent to which workers have control over when and how they work varies considerably. While some value the flexibility and reach working with a platform affords, in some cases, platforms have influence over allocating tasks and monitoring performance that aligns more closely with an employer/worker dynamic than self-employment. While this isn’t the case for all gig workers, those who are affected face acute insecurity which has been exacerbated by the current crisis.
Participation in the gig economy has grown rapidly in recent years, with demand increasing exponentially since the onset of the pandemic. More than 28% of gig workers reported more work than usual in August 2020, due in part to the increased reliance on gig workers to home-deliver necessities to consumers. However, without legal protections such as Statutory Sick Pay, during this time many gig workers have faced a stark choice between protecting their health and needing to earn a living.
The debate around the employment status of gig workers is not just confined to the UK, however, with live court cases and new legislation emerging in other countries, there’s a lot to learn about how others are tackling this complex issue.
This month, appeal court judges in Amsterdam have ruled in favour of trade union federation FNV, upholding their claim that Deliveroo delivery workers are employees of the company. Deliveroo had previously restricted delivery work to freelancers which, the company said at the time, gave people more freedom to decide where and when to work. The ruling earlier this week sets an important precedent, meaning that delivery workers in the Netherlands can now claim their entitlement to employment rights such as formal contracts, holiday pay and sick pay.
The situation is very different for gig workers in California, however. In November 2020, the campaign for employee protections for gig workers suffered a setback, with a referendum resulting in the likes of Uber drivers maintaining their legal status as independent contractors, rather than being recognised as employees. Not only are these workers prevented from accessing employee rights such as minimum wage, unemployment benefits, and health insurance, but according to workers for rideshare and delivery apps in the state, poor working conditions have persisted and pay has decreased since the ruling came into effect.
The situation for gig workers in France is not clear-cut. Legislation passed in 2016 created a social responsibility for gig economy platforms to guarantee all self-employed platform workers specific rights, including the right to strike, the right to organise, health and safety protections and a right to training. An attempt to build on those protections through a new bill was defeated in the French Senate last year. This bill would have capped platform workers’ working hours, introduced collective bargaining through annual negotiations between platforms and workers, and provided access to unemployment and health insurance. Perhaps most significantly, it would have introduced a right to information regarding the algorithms used to determine when and how work is allocated.
In some countries, gig workers have focused on changing their employment status in order to gain more rights and protections. There are trade-offs to consider, however, as in gaining full employee status workers may lose some of the flexibility and control that they would have by being self-employed. The introduction of incremental changes, such as in France, is arguably proving more successful in making tangible improvements to worker experiences.
It is important to highlight that gig workers are not a homogenous group, and are spread across a wide range of sectors, including transport and logistics, domestic services, creative occupations and professional services. Regardless of the outcome of tomorrow’s Supreme Court ruling, the upcoming Employment Bill is an opportunity for government to consider how best to prevent exploitation and protect workers from insecurity while preserving the flexibility and autonomy that platform work affords.
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