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Susannah Kintish on the Uber workers' rights decision

Posted on 13 November 2017

Susannah Kintish on the Uber workers' rights decision

On Friday, the Employment Appeal Tribunal (EAT) handed down its decision on the worker rights of two Uber drivers. A previous Employment Tribunal (ET) ruled that Uber drivers should be considered workers, with rights to the minimum wage and holiday and sick pay, as well as other benefits. The EAT upheld the original decision of the ET.

Mishcon de Reya Employment Partner Susannah Kintish is representing Pimlico Plumbers in its long running worker rights case due to be heard at the Supreme Court in February 2018, which is currently the highest authority on these issues. Commenting on the Uber decision, she said:

"Uber had sought to argue that the Tribunal was wrong in its original finding, and that Uber was acting as an agent for the drivers, finding them work. However, the Employment Appeal Tribunal (EAT) confirmed that the Tribunal was correct in concluding, given the specific facts of the case, that the drivers in reality worked for Uber and not the other way round. It is dangerous, however, to think that this case may lead to a green light for worker rights in the gig economy. 

"One difficult issue had been whether the drivers were working from the time that they turned on the app and were 'in territory' (in other words, they were in the designated area in which Uber had agreed they could work), or only when they accepted a customer's request for a trip. The EAT decided that the Tribunal had been entitled to conclude that, given the London market, the drivers were not really able to hold themselves out as available to any other taxi operator, and therefore were working at Uber's disposal as soon as they were in territory and with the app switched on. However, this is very fact specific. If Uber could show that drivers were able to hold themselves out as available to other operators, then the analysis would be different and the time spent working for Uber could be limited to when they had accepted a trip.

"What we are seeing is a growing trend for those working in the gig economy to be labelled workers. If this happens, it's likely that there will be a cost implication for businesses as they will need to cover things like holiday pay and minimum wage. This may mean that gig economy 'employers' will need to put their prices up or allow their margins to shrink. It's also likely that some companies which have an 'on call' style of app (such as Uber) may have to introduce limits to how many drivers are on call in any area, or introduce shift patterns, in order to ensure that there is not a problem of oversupply, which would drive their costs up without return. 

"As far as getting the right balance between flexibility and the protection of workers is concerned, the Taylor Report is a useful point of reference. It recognises that flexibility is important, and is something which is welcomed by many employers and workers alike. Flexibility tends to promote business growth and supports the economy, but at the same time it is critical that this isn't at the expense of, and on the backs of, an exploited workforce. Employment law is designed to protect workers from unscrupulous employees, but the evidence increasingly suggests that this 1996 piece of legislation is no longer fit for purpose in today's gig economy. As these cases show, wider and more up to date guidance is desperately needed."

Susannah's comments on the Uber decision were quoted in The New York Times, amongst other outlets, and she also featured on BBC Breakfast News on Saturday morning.   

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