Following a unanimous decision by the UK Supreme Court, popular ride-hailing app Uber must now classify its drivers as workers, entitling them to better workplace conditions and protections for the first time.
This includes the right to be paid the national minimum wage, to receive statutory minimum holiday pay and rest breaks, as well as protection from unlawful discrimination and whistleblowing.
Before the ruling, Uber classified its drivers as self-employed, independent workers on the basis that its app merely connects drivers with potential customers – a position the company has maintained throughout four years of legal proceedings and appeals that took the case all the way to the Supreme Court.
The latest decision follows Uber’s attempt to have the ruling of an October 2016 employment tribunal overturned, which determined that drivers should be treated as workers rather than self-employed individuals.
Having already appealed the original tribunal decision multiple times, the Supreme Court – the UK’s highest court – was Uber’s last chance to challenge the ruling, which has set an important precedent for how the country’s five million-plus workers in the gig economy are treated.
In the wake of the ruling, Yaseen Aslam, president of the App Couriers and Drivers Union (ADCU) and one of the two original claimants in the Uber case, spoke to Computer Weekly about the how the case started and its implications, as well as the workplace organising that supported the pair’s legal efforts.
Uber enters the market
Aslam started working as a private hire driver in London in 2006 and moved to Uber when the company launched its flagship Uber X request-a-ride service in 2013.
He says working for Uber and having an app that could manage all the rides was initially a very attractive prospect because it undercut the control of operators and disrupted the informal systems of favouritism that had developed throughout the taxi industry.
“Within traditional cab offices, you had some kind of favouritism system: let’s say your controller didn’t like you, he would give you all the crap jobs – so basically there was an element of abuse where someone could control how much you earn, but it was good and bad,” he says, adding that in order to balance what drivers at the same firm were earning, many cab offices would award drivers better jobs toward the end of a shift if they had had a bad night.
At the time, says Aslam, fares for Uber were also much higher and drivers benefited from “surge time”. That is when prices would often double or triple during busy periods, which passengers were happy to pay because the app gave them greater control over their journey and booking.
But Aslam notes that this was “just a honeymoon period” for Uber, with troubles starting to mount in late 2013 and early 2014 when drivers complained of being assaulted and facing racist abuse from passengers.
“When you complained, Uber wouldn’t listen to you”
Yaseen Aslam, ADCU
“When you complained, Uber wouldn’t listen to you,” he says. “In fact, they completely pretended they didn’t hear anything or removed all liability. They would also never ban the customer, whereas if it was a customer making a complaint about a driver, they [the driver] would get kicked off the platform.”
For example, Aslam alleges that when his co-claimant James Farrar was assaulted, it took police 10 weeks from when the incident was reported to get the passenger’s information from Uber.
“So we had these kinds of issues in the background and then around 2014, Uber first reduced its fares, and then, around 2015, they also increased the commission from 20% to 25%,” he says, adding that on top of these problems, Uber was at that point flooding the platform with drivers – “so we’re now doing more and more hours and making less, less, less”.
Computer Weekly asked Uber about its decision to reduce fares and increase commission – and whether it factored in how these changes would affect drivers – as well as accusations that it had not taken reports of racial abuse seriously – but received no response.
How the case started
In response to these issues, Aslam says he became very vocal and outspoken, and started to organise with other Uber drivers for better pay and working conditions. But Aslam’s organising with drivers led to his first “deactivation” in 2015, when he was kicked off the platform and only reinstated after a formal meeting with Uber.
Following this first deactivation, Aslam was speaking to a Guardian journalist about his organising efforts, eventually becoming a whistleblower in a story about Uber accepting fake insurance paperwork from drivers via its computerised approval procedures.
Although this incident led to a formal investigation by the regulator, Transport for London (TfL), and the eventual closure of the insurance loophole, Aslam was again kicked off the platform after he was inadvertently revealed as the whistleblower in the story.
“I was reported to the police and TfL,” he says. “No charges were ever brought against me because I never did anything wrong – I had all the correct documents, I was insured, and all that stuff – but that’s where my case started.” Aslam adds that Farrar was already speaking to law firm Leigh Day about his assault at that point.
“In my case it was whistleblowing, because it was done in the public interest, but in order to obtain this right, I had to be a worker,” says Aslam.
Under UK employment law, workplace whistleblowing protections are not extended to the self-employed, only employees and workers. While Aslam says it was clear from Uber’s conduct and his relationship with them that he was a worker, the company’s denial of this status meant this needed to be proved in court.
Computer Weekly contacted Uber about Aslam’s deactivations, but had received no response by the time of publication.
What does the ruling say and why is it significant?
A critical part of the Supreme Court decision was whether the written agreement between Uber and its drivers reflected the true working relationship between the two parties.
While Uber contended it was merely a technology provider, with drivers acting as independent contractors who work under contracts made with customers and not the company itself, the Supreme Court found, based on precedent, that “the employment tribunal was entitled to hold that the contractual documents did not reflect the true agreement between the parties”.
In a summary document, the court added: “There was no written contract between the drivers and Uber London, the nature of their legal relationship had to be inferred from the parties’ conduct, and there was no factual basis for asserting that Uber London acted as an agent for drivers.”
It further explained that the correct approach was to consider the purpose of the relevant employment legislation before any written agreement.
“That purpose is to give protection to vulnerable individuals who have little or no say over their pay and working conditions because they are in a subordinate and dependent position in relation to a person or organisation which exercises control over their work,” it said. “The legislation also precludes employers, frequently in a stronger bargaining position, from contracting out of these protections.”
The dismissal was therefore informed by several factors, including the fact that Uber – not the drivers – is responsible for dictating how much drivers are paid for the work they do. The company also “exercises significant control” over the way in which drivers deliver their services through its driver rating system, the court ruling said.
“In our case, the Supreme Court was quite clear if you look at Uber’s model,” says Aslam. “They set the contract in such a way – using an army of lawyers to manipulate everything – that the average person doesn’t understand what their rights are. It’s not just something that happened – they made it like that.”
Aslam claims Uber’s motivation was to scale its platform in a way that offloaded costs and liabilities to drivers, who already had massive overheads. “Drivers buy the car, they pay for all the wear and tear, so they’re carrying all the running costs, while Uber’s cost is next to nothing – for them, it’s all about trying to squeeze that one extra ride and how they could do it,” he says.
Aslam reiterates that while Uber was making its services cheaper to attract more customers, it was also employing more drivers, with the overall effect being that drivers had to work significantly longer hours to make the same kind of money as before – all while covering the costs of their vehicles.
Uber was asked to comment on these claims, but Computer Weekly received no response.
Aslam says: “The thing is, there needs to be a middle ground, and one of the things about this ‘workers status’ is it means there are protections, not everything, but some basic protection.”
He adds that although the status offers protection from discrimination and whistleblowing, the most important aspects are the right to earn minimum wage and holiday pay.
“Especially with the pandemic, we have drivers working full days and they’re making about £30, maximum £50 a day, and that’s just gross, not including the fuel and other expenses,” he says. “Tthe reason they do it is to try to offset their expenses somehow, rather than be in a minus figure. So now, more than ever, this ruling is very important for drivers.”
On top of granting the drivers better protections and pay, the ruling also clarified that drivers are “workers” from the minute they log on to the app to the minute they log off, which means they get paid from when they become active, not simply when passengers are on board.
“If I leave my house and get into my car, I’m ready to work,” says Aslam. “If I drive around empty all day or am parked up at Heathrow, I’m technically working, I’m not just sitting in my car enjoying myself.”
He points out that, under the kind of model Uber wanted, someone could be working 10-hour days and only be paid for 100 minutes of work, because that was the time passengers spent in the car.
Union organising was key
Although the Supreme Court decision is a huge milestone in gig economy workers’ fight for better conditions and pay, Aslam notes that drivers self-organising behind the scenes was key to winning the protracted legal battle with Uber.
“The Supreme Court ruling was amazing, but it wasn’t easy,” he says. “Since I’ve been organising drivers, I’ve seen them get worn out, they get tired, they burnt out and walk away.”
Aslam says he suffered from severe depression around the time of first tribunal in 2016 because of being out of work and losing his source of income.
“Our way to fight off depression and to keep ourselves motivated was to stay focused on what we were doing,” he says. “I think Uber underestimated us because they’re so used to seeing people come outside the office, do a little protest, and then never turn up again. So I think that was our strength.”
Unlike working at a traditional cab office, where once a job was completed, drivers would “go back to base” and mingle with each other, Aslam says drivers working for Uber and similar app-based platforms are much more isolated, making it harder to organise together.
“One of the biggest things is Uber relies on BME [black and minority ethnic] communities, so we were able to reach into and mingle with these communities, and that’s because we empowered them to be part of us,” says Aslam.
“One of the things we do quite a lot is being there helping drivers with day-to-day issues. It’s not just about fighting Uber – it’s all about making sure you are with the people and you’re helping the people, and you’re always accessible.
“We understand how hard it is for workers. We know the membership money is coming in from people who are so desperate that they can’t afford to pay that money. You’ve got to understand there is a section of the workforce that can’t even afford to be part of a union.”
Aslam says the success of his union, the App Drivers and Couriers Union (ADCU), came down to the fact that it is actually made up of, and led by, workers in the industry who are directly affected by the issues it is organising around. “I think one of the problems we see a lot is people pretending to organise, but really they’re not organising, they’re just trying to start some kind of revolution, but they don’t have a stake in the game,” he says.
Forming the ADCU
Alongside his co-claimant James Farrar, Aslam formed the United Private Hire Drivers (UPHD) association in 2015. Two years later, in 2017, the UPHD joined the International Workers’ Union of Great Britain (IWGB) as the IWGB UPHD branch.
Aslam says only about 20 members were involved at the start of working with the IWGB, but it soon got to a stage where, having grown to 1,700 members, the UPHD branch accounted for 40% of the IWGB’s membership.
However, in February 2020, the UPHD branch’s executive committee voted unanimously to disaffiliate from the IWGB and resume its independent status.
Aslam says the decision stemmed partly from disagreements about paying drivers who were volunteering their time to organise and set up new branches, and partly from the IWGB’s decision to not support Farrar in a separate legal case in which he was accused by the Metropolitan Police of assault for hurting officers’ ears with his megaphone.
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The IWGB was contacted for comment on the disagreement, but Computer Weekly had received no response by time of publication. **
“We all voted to disaffiliate and walk away from the IWGB and go independent again, and that’s what we did,” says Aslam, adding that the IWGB then took issue with him and Farrar continuing to organise and recruit under the UPHD banner, leading to accusations that the pair were misleading people who thought they would be joining the IWGB and were in breach of their contract by setting up a rival organisation.
Following a meeting with about 100 drivers, the group decided to rebrand completely. “All our guys said ‘look, let’s rebrand, let them have it because the brand means nothing, people know who we are – we’re on the ground, on the road, at Heathrow Airport, we’re everywhere’,” says Aslam, adding that with the onset of the pandemic, many drivers had shifted to courier work.
“We thought let’s do both, so the members decided to rebrand as the App Drivers and Couriers Union [ADCU],” he said.
The rebranded ADCU, according to its website, was officially registered as a trade union by the Certification Office in July 2020.
Wider implications and what’s next?
Aslam says that although he is “delighted and overjoyed” with the Supreme Court ruling, the decision was based on already existing laws and does not set out any new rules for Uber and other companies to follow.
“The problem we have is lack of enforcement, so there’s no one enforcing these laws, whether it’s a regulator such as TfL or central government, and it leaves people like myself having to fight lengthy battles,” he says.
“Someone, somewhere within the government bodies has failed us miserably – these are workers having to go and do the job of government by going in there to assert the laws. Companies like Uber, who have a fortune to burn, can come in and choose not to obey the law because they can afford not to obey the law.”
Estimates published by the GMB union, which represented a number of claimants in the case, suggest that “tens of thousands” of Uber drivers could be in line to receive £12,000 each in compensation following the ruling.
Law firm Keller Lenkner, which is representing 9,000 drivers in a group litigation action against Uber, has similarly calculated that each driver could claim back between £10,000 and £12,000.
It says the claim originally submitted by the firm was for 8,000 drivers, but since the ruling, more than 1,000 additional drivers have joined, and more are signing up every day.
“We are now working with the ADCU founded by Yaseen Aslam and James Farrar,” says Andrew Smith, managing director of Keller Lenkner. “We will imminently be filing further claims on an ongoing basis to ensure that all affected workers receive the compensation deserved, but thus far denied by Uber.
“The timescale for resolution of these claims for the drivers largely depends on the position Uber now takes. We would like Uber to now accept the findings of the Supreme Court and agree a mechanism to compensate our clients accordingly, in which case it could take a matter of months.
“If however, Uber does not face up to its legal obligations, we may have to re-engage in litigation that could take much longer.”
Leigh Day, another law firm, is representing a further 3,000 drivers, which means about 20% of Uber’s 60,000-strong UK workforce are litigating against the company.
“We’re going to see more and more of these actions collectively, but the biggest problem we have going forward is the data side,” says Aslam, adding that the ADCU is already involved in a case filed with Dutch courts in December 2020 on the issue of drivers being sacked via algorithm.
“It is important to understand how these algorithms work because Uber could turn round say ‘we’re going to obey this ruling’, but they could hide everything behind technology and tweak it in a way they want it – so it’s important to have transparency and see what’s behind it,” he says.
Aslam says the fight around data rights is important because, as a union, it will allow the ADCU to collectively bargain around the data. “We want to build a ‘data trust’ for drivers so we can see what’s happening, which would be used for collective bargaining with companies like Uber,” he adds.
TfL asked to enforce ruling
On 8 March 2021, the ADCU announced that, with the support of digital rights group Foxglove, it had sent a legal letter to TfL chair and mayor of London Sadiq Khan, asking him to enforce the ruling and protect all private hire drivers in London, including those that work for different platforms such as Ola, FreeNow and Bolt.
James Farrar, general secretary of the ADCU, said: “Sadiq Khan must act urgently to bring Uber, and all other private hire apps, simultaneously into compliance with employment law and the transport regulatory regime if they are to maintain their license. Uber’s contract trickery has not only cheated workers out of their basic rights, but has also placed drivers in legal jeopardy and put the safety of the travelling public at serious risk.”
Rosa Curling, Foxglove director and solicitor for ADCU, added: “It is now plain that Uber, Ola and all similar ride apps have been operating outside the law for many years. We very much hope that Transport for London will take this opportunity to enforce the law to protect both drivers and passengers from an under-regulated market, and that a judicial review will not be necessary.”
In its annual report to the US Securities and Exchange Commission (SEC) from 2019, Uber listed the UK employment tribunal’s decision as a major risk, writing that if it was required to classify drivers as workers, “we would incur significant additional expenses for compensating drivers, potentially including expenses associated with the application of wage and hour laws…employee benefits, social security contributions, taxes (direct and indirect), and penalties”.
It added: “Any such reclassification would require us to fundamentally change our business model, and consequently have an adverse effect on our business and financial condition.”
Computer Weekly contacted Uber for further comment on what the ruling means for its business model going forward, but had received no response by the time of publication.
Independently of each other, courts in Spain, Italy, the Netherlands, France and Belgium have already ruled in favour of reclassifying gig workers as workers or employees rather than independent contractors or self-employed, which means Uber is facing similar issues in a number of jurisdictions where it operates.
Aslam says it is likely that Uber will continue to resist the UK ruling despite running out of appeals, pointing to events in California surrounding the passing of Proposition 22 – a ballot initiative from November 2020 that allowed app-based transportation companies to continue classifying drivers as independent contractors rather than employees.
“Drivers did win [the right to be employees in an August 2020 court case], but then Uber was able to lobby and go out there to technically buy themselves a law,” he says.
Computer Weekly asked Uber whether it plans to lobby UK legislators about the Supreme Court decision, but received no response by the time of publication.
“I do think at some stage Uber might start saying, like they did in California, ‘we’re going to leave, we can’t do this, but it’s a way to scare consumers’,” says Aslam.
“I think it’s the wrong approach and I think customers need to understand that you can’t just have it cheap, cheap, cheap – there’s a human cost behind it.”