After the Uber ruling, there’s no excuse for government not to enforce workers’ rights | Jason Moyers-Lee
In 2018, Ali submitted a claim against Uber for unpaid holidays. Originally from Somaliland, he had been driving for Uber since 2016, a couple of years after arriving in the UK. Since then, he hadn’t had a single paid holiday, despite at times working up to 70 hours in a seven-day week. He had taken some time off though – once for a couple weeks on the doctor’s recommendation to address his (unsurprising) back pain. When he tried to get assistance from the Uber-provided insurance policy the company likes to boast about, he was told the time off wouldn’t be covered.
Despite an employment tribunal ruling as far back as 2016 that Uber drivers were entitled to basic protections such as minimum wage and paid holidays, Ali’s claim has been on hold while Uber continued to appeal the decision. Throughout the years of appeals, Uber denied these protections to its drivers. On Friday, however, six justices of the supreme court gave the final decision on the lead Uber case and, like the three rulings that came before it, held that Uber drivers are entitled to basic workers’ rights.
It’s not been an easy ride for Uber; the contractual arguments it urged on the tribunals and courts were rejected wholesale, at times with scorn. Uber’s legal case, at its most basic, is that the company is a “platform”, connecting riders and drivers. It earns its money not by transporting passengers, but rather by charging drivers – who it calls its “customers” – a fee for acting as the drivers’ agent and generating business leads (passenger rides) for them. When the employment tribunal first ruled in this case, however, it stated: “The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our minds faintly ridiculous.”
The court of appeal referred to “the high degree of fiction in the wording” of Uber’s contractual documents, as well as to “the air of contrivance and artificiality which pervades Uber’s case”. The supreme court also rejected Uber’s contracts as showing that the drivers were not entitled to basic workers’ rights, noting that: “Laws such as the National Minimum Wage Act were manifestly enacted to protect those whom parliament considers to be in need of protection and not just those who are designated by their employer as qualifying for it.”
In practice, however, successive Tory governments have largely left it to employers to decide which workers should qualify for employment rights. Few workers’ rights are enforced by any state body, leaving enforcement to the tribunals and courts after individual workers or unions submit claims. But even that was too much of a threat to business interests for the Tories; the coalition government clamped down on this by removing the rights of individuals to bring tribunal claims over breaches of health and safety statutes – part of David Cameron’s attempt to “kill off the health and safety culture for good” – and they introduced tribunal fees, which led to a massive reduction in claims.
The fees were later struck down by the supreme court; the court stated that without unimpeded access to the courts, “laws are liable to become a dead letter, the work done by parliament may be rendered nugatory, and the democratic election of members of parliament may become a meaningless charade.”
But beyond government attempts to restrain individual workers from asserting their rights, the few state agencies or departments that are mandated to enforce the law at work often do an abysmal job. David Metcalf, the former director of Labour Market Enforcement, pointed out that companies could expect a minimum wage inspection once every 500 years, and that around £1.8bn worth of holidays went unpaid each year. To his credit he made a number of suggestions on how to address this, the most useful of which were rejected by Theresa May’s government. Failing to make significant progress, he stepped down after less than three years.
Metcalf was replaced by Matthew Taylor, whose 2017 Taylor Review – which made a series of recommendations to the government on how to address precarious employment – was largely dismissed by trade unions as not going anywhere near far enough. Notably, it had almost nothing to say about the role of enforcement in protecting workers’ rights. But even Taylor has proved too much of a challenge for this government; his term has not been extended, despite him offering to stay on unpaid until a replacement was found, leaving the post vacant for several months. “The whole thing is incompetent, irresponsible and suggests a disregard for vulnerable workers,” Taylor tweeted about the debacle.
Not even a pandemic killing thousands is enough to force a rethink in approach: despite there being more than 3,500 workplace outbreaks of coronavirus, the Health and Safety Executive has failed to shut down or prosecute a single employer, preferring instead methods of “direct persuasion, advice and reprimand”.
The government’s utter disinterest in applying the law is certainly not lost on Uber. Indeed, in response to the ruling, Uber has already sought to downplay its significance, saying it only “focused on a small number of drivers”, leaving open the possibility that it wasn’t relevant to its thousands of current drivers as a number of changes had since been made to the app. Pursuing this path would be a slap in the face to Ali, who hoped the supreme court ruling would mean he finally has rights. It would be “very good news if we got our rights from 2016,” he tells me. “I hope we will get them now.”
With the supreme court’s decision, Uber has reached the end of the journey and it’s too late to cancel the trip. It’s now time for the government to make them pay. Ali and tens of thousands of his co-workers are waiting.