Uber’s worker status decision opens door to working time disputes
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Balloons at a pro Uber rally

An announcement from Uber that all of its UK-based drivers will now be treated as “workers”, weeks after a landmark court ruling granted 35 drivers that same employment protection, might lead to new legal battles between the ride-hailing giant and its workforce over the meaning of “working time”.

Uber’s decision, which comes after a five-year dispute, means the platform’s more than 70,000 UK drivers will now be guaranteed at least the National Living Wage of £8.72 an hour for workers who are over 25, paid holiday leave based on 12.07% of their earnings, and automatic enrolment in a workplace pension scheme.

Following last month’s UK Supreme Court ruling, Jamie Heywood, Uber’s regional general manager for northern and eastern Europe, played down the judgment’s significance, stating it only related to “a small number of drivers who used the Uber app in 2016”.

It’s the nature of business to want consistency. The future of work is too big of an issue for a one-size-fits-all solution

Writing in London Evening Standard on 16 March 2021, however, Uber CEO Dara Khosrowshahi said a growing number of workers have turned to platforms for the flexibility that they provide, but, it was “increasingly clear to us that flexibility alone is insufficient, and that it should not come at the expense of social protections”.

Khosrowshahi said the San Francisco-headquartered tech company “could have continued to dispute drivers’ rights to any of these protections in court,” but had instead “decided to turn the page”.

“What makes sense for the UK may not for Poland, Paraguay, or Pennsylvania,” he added. “It’s the nature of business to want consistency. The future of work is too big of an issue for a one-size-fits-all solution, and that’s OK. We’ve also come to believe that the status quo of independent work is simply not good enough.

“The Supreme Court judgment provides a clearer path forward, so that we can build a model that gives drivers the protections of worker status while continuing to let them work flexibly,” continued Khosrowshahi, before calling on Uber’s competitors to “rethink their approach and join us in taking this step”.

From today, 17 March 2021, Uber drivers earnings will be calculated based on when they are paired to, or travelling with, a passenger, but time waiting for customers would not be included. This is despite Lord Chief Justice Leggatt’s written judgment that drivers are workers from the moment they log on to the app and are ready to accept a trip, setting up further potential litigation over how to calculate “working time” for platform workers.

While Uber undoubtedly has made progress here, we cannot accept anything less than full compliance with legal minimums

Yaseen Aslam and James Farrar, lead claimants in Uber v Aslam, said the platform’s decision was “a day late and a dollar short” and that drivers should not accept anything less than “full compliance with legal minimums”.

“The Supreme Court ruled that drivers are to be recognised as workers with entitlements to the minimum wage and holiday pay to accrue on working time from log on to log off whereas Uber is committing only to these entitlements to accrue from time of trip acceptance to drop off. This means that Uber drivers will be still short-changed to the tune of 40-50%,” they said in a statement.

The president and general secretary of the App Drivers and Couriers Union (ADCU) added that it was unacceptable for Uber to “unilaterally decide the driver expense base in calculating minimum wage”, stating that this should be subject to collective agreement, and renewed their calls on the tech company to recognise trade unions and make progress on a fair dismissals appeals process and a data access agreement.

Analysing the court’s ruling for IEL in February, labour law academics suggested drivers might next consider bringing claims for full employee status. “Given what is known about Uber’s business model, there seems no reason why drivers wouldn’t also count as employees working under a contract of employment,” said Professor Alan Bogg at University of Bristol Law School.

According to Uber, drivers earn approximately £17 per hour of engaged time in London and £14 per hour of engaged time in the rest of the UK, on average, after expenses. In a Securities and Exchange Commission filing on 16 March, Uber revealed that its UK business represented about 6.4% of global gross bookings in the last quarter of 2020.

The news from the Silicon Valley giant comes as the ADCU writes to Transport for London seeking enforcement of the Supreme Court’s decision, as well as further defeats before Dutch and Spanish courts.