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1 Welcome to a thread on the #Uber #gigeconomy case in the @UKSupremeCourt - submissions for the drivers. They claim they have the right to paid holidays and a minimum wage. Both are enshrined in the Universal Declaration on Human Rights. Here’s the video: https://www.supremecourt.uk/live/court-01.html
2 Some background: the brilliant counsel for Uber, @DinahRoseQC, has already gone. Rose QC is doing a last case as she takes up the presidency at Magdalen, Oxford. Despite a valiant effort, Rose QC will probably lose this, because Uber’s such an awful client to defend.
3 The arguments from Rose QC yesterday amounted to “freedom of contract”, and who cares about rights?
It’s basically like Ted Cruz – the “Uber of Washington” in this case in the USA: https://scholar.google.com/scholar_case?q=563+F3d+492+(DC+2009)&hl=en&as_sdt=2006&case=15820652359117123721&scilh=0
It’s basically like Ted Cruz – the “Uber of Washington” in this case in the USA: https://scholar.google.com/scholar_case?q=563+F3d+492+(DC+2009)&hl=en&as_sdt=2006&case=15820652359117123721&scilh=0
4 At no point did Rose QC say what is Uber’s theory of statutory interpretation. Is it purposive? Is it historical? Is it literal?
The answer is, there’s none. It’s an empty assertion of privilege – contract is contract, and Uber says what that is.
See @JasonBraier yesterday.
The answer is, there’s none. It’s an empty assertion of privilege – contract is contract, and Uber says what that is.
See @JasonBraier yesterday.
5 There’s no credible intellectual defence of Uber’s position, nor a single labour lawyer, practising or in academia, I know of has defended Uber.
Of course, Rose QC and other barristers follow the “cab rank” rule – aptly named for this case! – they take cases as they come.
Of course, Rose QC and other barristers follow the “cab rank” rule – aptly named for this case! – they take cases as they come.
6 Uber argues its drivers aren’t workers or employees (more about that later) and so they don’t get paid holidays or the minimum wage. They’re just independent contractors. (Uber’s also argued passengers aren’t consumers, and it’s not a transport company).
7 Uber’s business model is to evade rights and tax and litigate in every jurisdiction worldwide. It’s predatory pricing.
In London its licence was revoked for failing to cooperate in rape and sex attack cases.
In Italy Uber’s been prosecuted under laws used against the mafia.
In London its licence was revoked for failing to cooperate in rape and sex attack cases.
In Italy Uber’s been prosecuted under laws used against the mafia.
8 I’ve argued in English law Uber is liable for fraud, and punitive damages, if they contrive to misrepresent driver employee status, as the Tribunal found: https://academic.oup.com/ilj/article/48/2/180/5050118
9 By contrast, Uber’s submissions would overturn the universal human rights to “just and favourable remuneration” and “holidays with pay” for “everyone”. https://en.wikisource.org/wiki/Universal_Declaration_of_Human_Rights#Article_23
These rights were extended in the 1966 Covenant, a treaty the UK ratified.
These rights were extended in the 1966 Covenant, a treaty the UK ratified.
10 Uber’s central argument seeks to overturn the UK Supreme Court principle in Gisda Cyf v Barratt:
“The need to segregate intellectually common law principles relating to contract law, even in the field of employment, from statutorily conferred rights is fundamental.”
“The need to segregate intellectually common law principles relating to contract law, even in the field of employment, from statutorily conferred rights is fundamental.”
11 Uber also ignores Lord Reed in Unison:
‘Relationships between employers and employees are generally characterised by an imbalance of economic power... Parliament has long intervened ... to confer statutory rights on employees [and not leaving it to...] freedom of contract.'
‘Relationships between employers and employees are generally characterised by an imbalance of economic power... Parliament has long intervened ... to confer statutory rights on employees [and not leaving it to...] freedom of contract.'
12 So this shouldn’t be about whether Uber loses – like they were banned in Germany, and have lost in California – but how badly.
This is about everyone else’s rights at work.
Do precarious or casual workers have rights? Or is the UK going let Uber abolish rights at work?
This is about everyone else’s rights at work.
Do precarious or casual workers have rights? Or is the UK going let Uber abolish rights at work?
13 A problem in this case is that the public interest isn’t represented. The drivers want something very specific: to be non-employee workers.
Today we’re hearing from @galbraithmarten for one driver – he started yesterday, and continues.
He's arguing drivers work for Uber.
Today we’re hearing from @galbraithmarten for one driver – he started yesterday, and continues.
He's arguing drivers work for Uber.
14 Let's recap the crux of the law:
“Employees” get all rights – including to unfair dismissal protection, protection from dangerous (e.g. covid-19) work, and the employer pays National Insurance contributions, and income tax.
“Employees” get all rights – including to unfair dismissal protection, protection from dangerous (e.g. covid-19) work, and the employer pays National Insurance contributions, and income tax.
15 “Workers” do not get the core “employee” rights, but do get paid holidays, the minimum wage, the right to have a union recognised, and and health and safety protection.
“Employees” get all worker rights.
“Employees” get all worker rights.
16 Other countries haven't adopted this threefold distinction, introduced under Blair. Uber drivers have been found to be employees in every major jurisdiction where it has been litigated so far.
There's compelling arguments against our intermediate status, eg @valeriodeste
There's compelling arguments against our intermediate status, eg @valeriodeste
17 In the meantime, the crucial question in the UK is what do we do when people are told unilaterally by their employers, “you’re an independent contractor” or “you’re not an employee, just a worker”
... and we know it’s all about evading rights and tax?
... and we know it’s all about evading rights and tax?
18 The snag is, an employee pays 12% in National Insurance contributions, while a self-employed person (including a ‘non-employee worker’) pays 9%.
This means there’s a short term financial incentive for Uber drivers to not be "employees", but they do want to be "workers".
This means there’s a short term financial incentive for Uber drivers to not be "employees", but they do want to be "workers".
19 Employee rights are worth more than 3% extra in NICs, but the drivers and counsel in the Uber case haven’t been convinced of this.
Their case is that drivers are non-employee workers.
This means public pensions are underfunded, and tax is uncollected.
Their case is that drivers are non-employee workers.
This means public pensions are underfunded, and tax is uncollected.
20 The UK Supreme Court can – of its own motion – say the drivers are workers *and* employees. In the previous leading case, Autoclenz Ltd v Belcher, the Supreme Court held car valets were both workers and employees, to get holidays and pay claims.
http://www.bailii.org/uk/cases/UKSC/2011/41.html
http://www.bailii.org/uk/cases/UKSC/2011/41.html
21 But we don’t have any interveners in this case – labour lawyers should think about this in the future – to put forward the arguments in the public interest.
The proper case is that drivers are employees. They have all rights. This will ensure pensions and tax are funded.
The proper case is that drivers are employees. They have all rights. This will ensure pensions and tax are funded.
22 Also the Supreme Court of Canada just decided a landmark case against Uber.
When there's inequality of bargaining power, there are fundamental rights that cannot be contracted away - e.g. to go to court.
See this summary by @thebigbogg https://ohrh.law.ox.ac.uk/uber-v-heller-and-the-prospects-for-a-transnational-judicial-dialogue-on-the-gig-economy-i/
When there's inequality of bargaining power, there are fundamental rights that cannot be contracted away - e.g. to go to court.
See this summary by @thebigbogg https://ohrh.law.ox.ac.uk/uber-v-heller-and-the-prospects-for-a-transnational-judicial-dialogue-on-the-gig-economy-i/
23 Will the UKSC follow this strong, principled judgment?
We'll see. Lord Reed yesterday indicated what he thinks matters is the purpose of the statute.
This has huge implications for other cases like Deliveroo pending in the Court of Appeal.
We'll see. Lord Reed yesterday indicated what he thinks matters is the purpose of the statute.
This has huge implications for other cases like Deliveroo pending in the Court of Appeal.
24 So now to the show with @galbraithmarten.
He's going into the Carmichael case - a disastrous decision by Blair's pupil master, Lord Irvine LC - before the Lord Chancellor was prevented from sitting on courts. This held tour guides couldn't get an employment contract.
He's going into the Carmichael case - a disastrous decision by Blair's pupil master, Lord Irvine LC - before the Lord Chancellor was prevented from sitting on courts. This held tour guides couldn't get an employment contract.
25 However @galbraithmarten is focusing on points of construction by Lord Hoffmann - that construction is a matter of law.
His basic position is we should follow the findings of fact by the Tribunal - this said Uber had "contrived to misrepresent" employment status of drivers.
His basic position is we should follow the findings of fact by the Tribunal - this said Uber had "contrived to misrepresent" employment status of drivers.
26 Now @galbraithmarten (GMQC for short) is turning to Autoclenz.
He's hitting the target directly: unequal bargaining power and purposive interpretation of statute requires contract terms are ignored when they don't reflect economic reality.
He's asks the UKSC to follow it.
He's hitting the target directly: unequal bargaining power and purposive interpretation of statute requires contract terms are ignored when they don't reflect economic reality.
He's asks the UKSC to follow it.
27 GMQC says Autoclenz (for the first time) made the UK principles of who's an employee consistent with EU case law on a "worker".
A principle of "social law" - and in the Charter of Fundamental Rights of the EU art 31. https://en.wikisource.org/wiki/Charter_of_Fundamental_Rights_of_the_European_Union#Article_31_–_Fair_and_just_working_conditions
(Weaker than the UDHR or ICESCR!)
A principle of "social law" - and in the Charter of Fundamental Rights of the EU art 31. https://en.wikisource.org/wiki/Charter_of_Fundamental_Rights_of_the_European_Union#Article_31_–_Fair_and_just_working_conditions
(Weaker than the UDHR or ICESCR!)
28 GMQC refers to the CJEU case of AFMB (2020) C-610/18, which says [58] the court must pay regard to "the circumstances surrounding the conclusion of those contracts".
Lord Reed asks where the drivers rights come from? For paid holidays, it's EU law.
http://curia.europa.eu/juris/celex.jsf?celex=62018CJ0610&lang1=en&type=TXT&ancre=
Lord Reed asks where the drivers rights come from? For paid holidays, it's EU law.
http://curia.europa.eu/juris/celex.jsf?celex=62018CJ0610&lang1=en&type=TXT&ancre=
29 GMQC says we should follow the approach of the CJEU, and ask who has "the actual power to dismiss that worker". We should disregard contractual form.
This is similar to the argument of @jeremiasprassl on who truly fulfils the functions of the employer. https://global.oup.com/academic/product/the-concept-of-the-employer-9780198796145?cc=gb&lang=en&
This is similar to the argument of @jeremiasprassl on who truly fulfils the functions of the employer. https://global.oup.com/academic/product/the-concept-of-the-employer-9780198796145?cc=gb&lang=en&
30 Lord Sales asks when the concept of a worker should match between UK law and EU law? If Parliament intends it, no need to go to the Marleasing etc.
This is a basic confusion - "worker" in EU law is the same as "employee" in the UK.
Our "worker" concept is broader.
This is a basic confusion - "worker" in EU law is the same as "employee" in the UK.
Our "worker" concept is broader.
31 Lord Reed and Lady Arden point out that the concepts could differ.
Elias J in James v Redcats is discussed.
Lord Reed points to para [6] says Parliament must have *at least* intended to fulfil EU law on working time in its definition of worker.
Yep. https://www.bailii.org/uk/cases/UKEAT/2007/0475_06_2102.html
Elias J in James v Redcats is discussed.
Lord Reed points to para [6] says Parliament must have *at least* intended to fulfil EU law on working time in its definition of worker.
Yep. https://www.bailii.org/uk/cases/UKEAT/2007/0475_06_2102.html
32 Now Secret Hotels, especially [34]. GMQC says he disagrees with nothing and it really has "nothing to do with our case".
Good.
https://www.bailii.org/uk/cases/UKSC/2014/16.html
Good.
https://www.bailii.org/uk/cases/UKSC/2014/16.html
33 Hmmm. Lady Arden says Autoclenz doesn’t require looking at economic reality, or the relationship functionally. It is about the parties’ true intentions.
But really? What's the point of regarding inequality of bargaining power, if it is not to look at the economic reality?
But really? What's the point of regarding inequality of bargaining power, if it is not to look at the economic reality?
34 Five minute break. So let's just recap what the idea of inequality of bargaining power actually is.
First, following Adam Smith, it flows from inequality of property and wealth, enabling an employer to "hold out much longer" longer in any dispute:
https://oll.libertyfund.org/titles/smith-an-inquiry-into-the-nature-and-causes-of-the-wealth-of-nations-cannan-ed-vol-1#Smith_0206-01_391
First, following Adam Smith, it flows from inequality of property and wealth, enabling an employer to "hold out much longer" longer in any dispute:
https://oll.libertyfund.org/titles/smith-an-inquiry-into-the-nature-and-causes-of-the-wealth-of-nations-cannan-ed-vol-1#Smith_0206-01_391
Second, following JS Mill, unequal bargaining power comes from collective organisation - if you're a corporation, and I'm an individual, you have more power, and this necessitates labour rights: http://www.econlib.org/library/Mill/mlP73.html#Bk.V,Ch.XI
Third, like WS Jevons or many others, you have more bargaining power with more information: Theory of Political Economy, ch 4, §74.
Unequal power imbalances all terms of transactions, and enables the strong to perpetuate growing inequality. This explains labour's falling income.
Unequal power imbalances all terms of transactions, and enables the strong to perpetuate growing inequality. This explains labour's falling income.
35 Now GMQC talking about the defining features of an employment relationship. Ready Mix Concrete, cited in Autoclenz. (Btw, this refers explicitly to the US case law endorsing the ‘economic reality’ approach.)
This focuses on control, a feature of a contract of service.
This focuses on control, a feature of a contract of service.
36 GMQC says it follows that control is also a feature of the worker definition. (I don’t get this.)
He says Uber does exercise considerable control over Uber drivers.
(Is GMQC actually saying - unlike what I said earlier - that Uber drivers are employees?)
He says Uber does exercise considerable control over Uber drivers.
(Is GMQC actually saying - unlike what I said earlier - that Uber drivers are employees?)
37 Tribunal found overwhelming power of control by Uber over drivers, eg in welcome packet:
- help with any luggage
- if passenger doesn't know address, ask area
- be honest if you take a wrong turn
GMQC: "It's not just control. It's micro-management."
- help with any luggage
- if passenger doesn't know address, ask area
- be honest if you take a wrong turn
GMQC: "It's not just control. It's micro-management."
38 GMQC adds, Uber says "do not discuss personal topics".
(Lord Reed starts grinning and giggling!)
GMQC says again, it's "micro-management".
(Lord Reed starts grinning and giggling!)
GMQC says again, it's "micro-management".
39 Uber knows where passengers want to go at the time of booking.
But Uber deliberately does not give the drivers the information where passengers want to go, to prevent them screening (and drivers might have to go very far).
This is inconsistent with a simple agency relation.
But Uber deliberately does not give the drivers the information where passengers want to go, to prevent them screening (and drivers might have to go very far).
This is inconsistent with a simple agency relation.
40 Uber has a "performance management process", testing drivers - it's not just access to an app.
Uber has a "disciplinary process" - and has used it against drivers for:
- "poor English"
- "driver looked tired"
- "inappropriate discussion"
- "stopped for petrol"
Uber has a "disciplinary process" - and has used it against drivers for:
- "poor English"
- "driver looked tired"
- "inappropriate discussion"
- "stopped for petrol"
41 We can deduce Uber's controlling position from *its own* evidence to the Tribunal, let alone the evidence.
The Tribunal found there was control and an obligation to work. These "satisfy the statutory criteria".
(Huh? The statute doesn't require either.)
The Tribunal found there was control and an obligation to work. These "satisfy the statutory criteria".
(Huh? The statute doesn't require either.)
42 Linking the approach to decide who is a worker with tenancy laws, Street v Mountford and AG v Vaughan - the division between a lease and a licence.
The HL referred to "true nature of the arrangement" - reflected in Autoclenz.
(But unequal bargaining power is the key.)
The HL referred to "true nature of the arrangement" - reflected in Autoclenz.
(But unequal bargaining power is the key.)
43 On tax cases, Barclays Mercantile + UBS per Lord Reed:
68. "the facts must be analysed in the light of the statutory provision being applied. If a fact is of no relevance to the application of the statute, then it can be disregarded for that purpose." https://www.bailii.org/uk/cases/UKSC/2016/13.html
68. "the facts must be analysed in the light of the statutory provision being applied. If a fact is of no relevance to the application of the statute, then it can be disregarded for that purpose." https://www.bailii.org/uk/cases/UKSC/2016/13.html
44 Now over to Oliver Segal QC. He's calmly explaining why Uber exercises management control, powers of discipline.
"Any tribunal... would recognises these obligations as part of a worker contract."
(Yes, and clearly an employee contract.)
"Any tribunal... would recognises these obligations as part of a worker contract."
(Yes, and clearly an employee contract.)
45 Segal QC is imagining a story where Uber gets its licence, and starts hiring drivers with all its mechanisms of control.
Then imagine that Uber restructures to make sure its contracts and corporate forms are the same, but to exercise effective economic power.
Very clever!
Then imagine that Uber restructures to make sure its contracts and corporate forms are the same, but to exercise effective economic power.
Very clever!
46 Segal QC points out that in France, Spain, Australia or Florida the courts have seen through Uber's contractual games.
Uber shouldn't be able to deprive drivers of rights through its contractual drafting. Refers to article by @thebigbogg + @MichaelFordQC and the Bankway case.
Uber shouldn't be able to deprive drivers of rights through its contractual drafting. Refers to article by @thebigbogg + @MichaelFordQC and the Bankway case.
47 Segal QC explains Arden LJ's decision in Bankway.
[45] freedom of contract was invoked by the landlord, but it was well understood that Parliament had interfered with this. The court's role was to give effect to Parliament's intention.
https://www.bailii.org/ew/cases/EWCA/Civ/2001/528.html
[45] freedom of contract was invoked by the landlord, but it was well understood that Parliament had interfered with this. The court's role was to give effect to Parliament's intention.
https://www.bailii.org/ew/cases/EWCA/Civ/2001/528.html
48 Segal QC points out Bankway was approved in Autoclenz.
On tax cases, Lord Wilberforce: it'd be an "excess of judicial abstinence" to defer to contracts if examining tax evasion cases.
(Of course, Uber's principal aim is to evade taxes and NICs with its sham contracts.)
On tax cases, Lord Wilberforce: it'd be an "excess of judicial abstinence" to defer to contracts if examining tax evasion cases.
(Of course, Uber's principal aim is to evade taxes and NICs with its sham contracts.)
49 A "good deal of intellectual effort" goes into tax evasion.
Yes, it's sad. Think of all the wasted human ingenuity that goes into financial restructuring, tax and accounting creativity - some of the best minds going to socially wasteful activity.
The UKSC can limit it here.
Yes, it's sad. Think of all the wasted human ingenuity that goes into financial restructuring, tax and accounting creativity - some of the best minds going to socially wasteful activity.
The UKSC can limit it here.
50 Segal QC says recognition of inequality of bargaining power has informed the introduction of statutory labour rights - see Lord Reed in Unison.
Uber is wrong to say the Tribunal disregarded the contracts - it based its finding on them, and the control exercised through them.
Uber is wrong to say the Tribunal disregarded the contracts - it based its finding on them, and the control exercised through them.
51 Referring to Gilham - the case saying human rights must be taken into account to decide whether someone has a relation akin to being a worker.
https://www.bailii.org/uk/cases/UKSC/2019/44.html
https://www.bailii.org/uk/cases/UKSC/2019/44.html
52 Lady Arden asks a final question before lunch: should Autoclenz have more explicitly recognised the role of the statute?
Let's leave that hanging.
Let's leave that hanging.
There's also an excellent thread done by @MattJEJackson on the case today.
53 Back on after the lunch break.
Segal QC starts by making points about relationships of definitions of a "worker" in different legislation.
He says the meanings of "worker" should be the same and "underpinned" by EU law.
(Hmmm. It's clear the UK "worker" is wider.)
Segal QC starts by making points about relationships of definitions of a "worker" in different legislation.
He says the meanings of "worker" should be the same and "underpinned" by EU law.
(Hmmm. It's clear the UK "worker" is wider.)
54 In agency law, it's basic that the agent is a "fiduciary" (and of course the core of this is no conflicts of interest - that doesn't apply to workers).
(On the TV, Rose QC starts to look serious.)
Says agency involves control "to some extent".... (where's this going?)
(On the TV, Rose QC starts to look serious.)
Says agency involves control "to some extent".... (where's this going?)
55 A pure agency relation (i.e. a non-worker, non-employee agent) is completely unlike the one between Uber and drivers, as the Tribunal realised.
Rose QC's case is "misleading" - driver has no rights against the passenger.
Rose QC's case is "misleading" - driver has no rights against the passenger.
56 Uber assumes complete control over either passenger or driver getting damages from the other.
It'd be unprecedented in an agency relation that the passenger or driver would have no way to enforce their rights against the other.
It'd be unprecedented in an agency relation that the passenger or driver would have no way to enforce their rights against the other.
57 In a 2015 article by a driver - on a passenger's racist assault - Uber refused to tell the driver the passenger's name.
The driver (Uber calls the driver the "customer") is even told to get insurance against this and other types of damage.
Amazing.
The driver (Uber calls the driver the "customer") is even told to get insurance against this and other types of damage.
Amazing.
58 Uber attempts to prevent enforcement of any rights between driver and passenger, yet claims these two are in a contractual relationship.
None of this is consistent with basic principles of agency law.
(This is blasting the heart out of the absurd contract case of Uber.)
None of this is consistent with basic principles of agency law.
(This is blasting the heart out of the absurd contract case of Uber.)
59 This case is one where the employer "dictates terms" requiring the purposive approach set out in Autoclenz.
(Again, not like Secret Hotels.)
There should be no difference between the idea of economic reality in a tax case, to a worker case.
(Again, not like Secret Hotels.)
There should be no difference between the idea of economic reality in a tax case, to a worker case.
60 The drivers' case was never that Uber could *not* create a non-worker agency relationship. The problem is they didn't.
Underhill LJ + Uber's approach was flawed, saying because they *could* have created non-worker agency relation, they did.
They leave out purpose of the law.
Underhill LJ + Uber's approach was flawed, saying because they *could* have created non-worker agency relation, they did.
They leave out purpose of the law.
61 "It is time to call a spade a spade."
Uber's contracts are just an "extended relabelling exercise."
None of the features of a contractual agency relation exist - "the more one engages with principles of agency law, the more clear that becomes."
Uber's contracts are just an "extended relabelling exercise."
None of the features of a contractual agency relation exist - "the more one engages with principles of agency law, the more clear that becomes."
62 It is "illuminating to consider the broad effect of Uber's case."
Imagine if Autoclenz had Uber's "pseudo-agency" contracts.
They'd be denied the national minimum wage, as the valeters would only have an agency relation to Autoclenz, etc.
Asks Rose QC to correct if wrong.
Imagine if Autoclenz had Uber's "pseudo-agency" contracts.
They'd be denied the national minimum wage, as the valeters would only have an agency relation to Autoclenz, etc.
Asks Rose QC to correct if wrong.
63 Lady Arden asks can you have a "putative worker working for two people"?
Segal QC says a driver wouldn't be a worker of both Uber and a passenger.
Lady Arden says she's actually thinking of a "triangular relationship".
(Excellent point - employment agencies/parent co's.)
Segal QC says a driver wouldn't be a worker of both Uber and a passenger.
Lady Arden says she's actually thinking of a "triangular relationship".
(Excellent point - employment agencies/parent co's.)
64 Segal QC says the minicab cases get Uber nowhere.
They all turn on their facts, eg Mingeley (a disgraceful discrimination case) saying there was no mutuality of obligation and no claim for a minicab driver.
Segal QC points out that must be considered doubtful.
They all turn on their facts, eg Mingeley (a disgraceful discrimination case) saying there was no mutuality of obligation and no claim for a minicab driver.
Segal QC points out that must be considered doubtful.
65 Is mutuality required under section 54, asks Lady Arden?
Segal QC says it's required in periods of work, but not between them.
This is essential. The right view is an ongoing duty to offer and accept work is *not* required *anywhere*. Consideration is: https://academic.oup.com/ilj/article/48/2/180/5050118
Segal QC says it's required in periods of work, but not between them.
This is essential. The right view is an ongoing duty to offer and accept work is *not* required *anywhere*. Consideration is: https://academic.oup.com/ilj/article/48/2/180/5050118
66 Let's just emphasise this point about "mutuality of obligation". It was not referred to *at all* in the exhaustive test laid down for employee status in Autoclenz.
The consensus is, if it means anything more than work for a wage - it undermines employment rights. It must go.
The consensus is, if it means anything more than work for a wage - it undermines employment rights. It must go.
67 Tribunal found when drivers log onto Uber's app, they are working.
(Uber's going to have some bills to pay. Wage theft provisions would kick in, allowing claims for unlawful deductions from the minimum wage, in the Employment Rights Act 1996 section 13.)
(Uber's going to have some bills to pay. Wage theft provisions would kick in, allowing claims for unlawful deductions from the minimum wage, in the Employment Rights Act 1996 section 13.)
68 Uber has a means of knowing in its app whether other apps are open, and then generates prompts every 3 minutes checking if drivers are available to take rides.
Whether someone who "stands and waits" is working is a question of fact - citing Milton, used by Arden LJ before.
Whether someone who "stands and waits" is working is a question of fact - citing Milton, used by Arden LJ before.
69 Lord Leggatt asking about multiple apps - Segal QC says Uber can't assert - then says he hesitates, because Uber asserts a lot! - can't reasonably assert there's no obligation for drivers to work, because they get logged off if they don't accept rides.
70 Lord Leggatt says you don't get the minimum wage while logged onto many apps do you?
(That seems a decent point, except the fact is Uber does everything to ensure it's got the driver exclusively.)
Segal QC says he'll come back to this point.
(That seems a decent point, except the fact is Uber does everything to ensure it's got the driver exclusively.)
Segal QC says he'll come back to this point.
71 Just as an aside, I wonder if the Supreme Court members have ever asked a Hackney carriage driver what they think about Uber?
I have. It gets pretty much the same response every time! I wonder if this kind of empirical research may shape some views?
I have. It gets pretty much the same response every time! I wonder if this kind of empirical research may shape some views?
72 Segal QC says in reply to the minimum wage law point (1) as a matter of fact, it's unlikely to be logged onto two apps (2) if a driver is on two apps, and it's an employee of neither, this defeats the purpose of the legislation. Being an employee of both does not.
Excellent.
Excellent.
73 Now it's Rose QC again in reply.
How many times will she say the word "contract"?
I count 10 times already...
Contract
Contract
Contract
Contract
Contract
Contract
Contract
Contract
Contract
Contract...
How many times will she say the word "contract"?
I count 10 times already...
Contract
Contract
Contract
Contract
Contract
Contract
Contract
Contract
Contract
Contract...
74 Rose QC (as well as saying "contract" 18 times now) asserts once more that the relationship was consistent with agency.
So, I guess we're just going to pretend Segal QC's points about agency law, from the basic texts, just didn't happen!
Contract
Contract
Contract
Contract
So, I guess we're just going to pretend Segal QC's points about agency law, from the basic texts, just didn't happen!
Contract
Contract
Contract
Contract
75 Rose QC says the Tribunal effectively said if Uber gives you have an "opportunity to work" then you have an "obligation to work".
Oh sure, Uber's just giving everyone opportunity!
They're job creators!
In Ted Cruz's words, they create "entrepreneurial opportunity".
Oh sure, Uber's just giving everyone opportunity!
They're job creators!
In Ted Cruz's words, they create "entrepreneurial opportunity".
76 Rose QC "nobody runs up a credit bill with Uber".
That particular message has not reached Uber's board, as @veenadubal explains here: https://www.theguardian.com/commentisfree/2019/dec/05/uber-loan-program-debt
That particular message has not reached Uber's board, as @veenadubal explains here: https://www.theguardian.com/commentisfree/2019/dec/05/uber-loan-program-debt
77 The "driver's function is to drive the passenger where they want to go".
Rose QC is making a legal argument, but isn't it painful how the language of contract, over human rights, necessarily dehumanises people.
Drivers just have a "function". Just "drive".
Rose QC is making a legal argument, but isn't it painful how the language of contract, over human rights, necessarily dehumanises people.
Drivers just have a "function". Just "drive".
78 Rose QC is relying on "mutuality of obligation" because of course.
This invites the UKSC to perpetuate a disgraceful, damaging argument: there's no ongoing duty to offer or accept work on Uber or driver, because Uber says so. So no employment rights.
It must be scrapped.
This invites the UKSC to perpetuate a disgraceful, damaging argument: there's no ongoing duty to offer or accept work on Uber or driver, because Uber says so. So no employment rights.
It must be scrapped.
79 Rose QC: the driver is taking all the risk - car, fuel, etc - and that's consistent with a non-worker agency relation.
No it's not. It's consistent with Uber's dominant bargaining power, privatising all gains, socialising all costs of its enterprise.
That's not "flexible".
No it's not. It's consistent with Uber's dominant bargaining power, privatising all gains, socialising all costs of its enterprise.
That's not "flexible".
80 Rose QC: the "commercial reality" supports "the contract".
Segal QC's scenario was "slightly lurid".
The statutory scheme doesn't impose a particular employment structure on employers.
This. Just. Does. Not. Get. Rights. Here's Otto Kahn-Freund: https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1967.tb02799.x
Segal QC's scenario was "slightly lurid".
The statutory scheme doesn't impose a particular employment structure on employers.
This. Just. Does. Not. Get. Rights. Here's Otto Kahn-Freund: https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1967.tb02799.x
81 Rose QC says Segal QC's article about racist assault, Uber not giving passenger details to the driver, was an attempt to lead the UKSC to make findings of fact that the Tribunal didn't make and are hotly contentious.
Doesn't Uber need facts to prove it's an agency relation?
Doesn't Uber need facts to prove it's an agency relation?
82 And Rose QC finishes asking for the appeal to be allowed.
Lord Reed: it's an "important and interesting" case. And that's it.
Lord Reed: it's an "important and interesting" case. And that's it.
83 Final thoughts. This case underlines a pressing need for the UKSC to find:
(1) mutuality of obligation is no part of the law, a gloss on statute, undermining rights
(2) UK labour rights are to be interpreted consistently with international human rights law
(1) mutuality of obligation is no part of the law, a gloss on statute, undermining rights
(2) UK labour rights are to be interpreted consistently with international human rights law
(3) Rights exist because workers' unequal bargaining power - flowing from unequal income and wealth - means they can't contract for them
(4) The purpose of Parliament in protecting rights is paramount
(5) Employers who systematically evade rights need to be halted, otherwise...
(4) The purpose of Parliament in protecting rights is paramount
(5) Employers who systematically evade rights need to be halted, otherwise...
(6) The failure to enforce rights acts as a legal subsidy to the worst employers, leading a cutthroat competition. The bad lead the good, and the worst lead the bad, in a race to the bottom.
(7) The fact that Uber's gone on so long underlines the need for a Labour Code
(7) The fact that Uber's gone on so long underlines the need for a Labour Code
(8) UK employment and labour rights are broken, and it's time to think about how they can be rewritten from scratch.
(9) Personally, I just wish tech companies would uphold rights and pay their taxes!
If you made it this far, thanks for tuning in! #ukemplaw #gigeconomy #Uber
(9) Personally, I just wish tech companies would uphold rights and pay their taxes!
If you made it this far, thanks for tuning in! #ukemplaw #gigeconomy #Uber
