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Michael Newman and Maria Ludkin respond to a recent post on Legal Cheek about Uber and Deliveroo

Deliveroo rider
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    Michael Newman is a partner in the employment department where he specialises in equal pay and discrimination claims. Maria Ludkin is the legal director of trade union GMB.
    Gareth Wood’s recent journal piece on regulating companies such as Uber and Deliveroo made for some startling reading, not least because of the supreme confidence with which he directly repeated the public relations output of the companies without any reference to the experience of real workers. We initially wondered if this article was a satirical part of the Uber job application process?

    These are companies who take advantage of the lax policing of the boundary between work and independent contractor (let’s at least hesitate to use the phrase “gig economy”, as there is nothing rock and roll about couch-surfing rather than crowd-surfing because your “gigs” won’t pay your rent), and yet the suggestion was that corporate interests should take priority when deciding which direction the law would take.

    Using this logic, would we ask seasoned hackers to design the appropriate boundary between privacy and online access? Or prison inmates to rethink what should be criminal?

    Employment law is there for both companies and individuals, but the flexibility that seemed to be cherished in the PriceWaterhouseCoopers (“PwC”) Three Worlds study cited by Gareth is one-sided: flexibility for the company to offer no job security; flexibility for the company to make no pension contributions; flexibility for the company to disregard minimum wage requirements; and flexibility to avoid tax, as long as the taxpayer shores up low pay by funding associated welfare benefits, and effectively underwriting corporate profits.

    Despite the emphasis on the individual being “specialised”, allegedly leading to greater bargaining power, Uber and Deliveroo have demonstrated the more prosaic fact that ‘new’ economy workers are doing the same hard work for low pay as all drivers and couriers over the decades. A shiny app can’t disguise that, and the judges so far agree.

    Regardless of whether the world is blue, green or orange, there is nothing colourful and fun for workers struggling to earn enough from sub national minimum wage pay, usually trying to support their families . This is borne out by the vast number of workers who receive benefits, despite holding one or more jobs in their “portfolio”.  

    GMB have brought a range of claims on behalf of members who work in the real world, as opposed to PwC’s green world. In the world occupied by GMB’s members, there are standard contracts, handed to each member on a “take it or leave it” basis, and none of the “bespoke contracts” that the study envisages. Lifting the lid on the companies reliant on bogus self-employment reveals people working longer hours, for lower pay – without worker status, meaningless contracts, and no mechanism to enable the worker to refuse work without being penalised. A lack of enforcement of national minimum wage by an underfunded HMRC compounds the problem. Hardly the bright-eyed utopia we should be rushing into, either in 2022 or in 2017.

    As employment lawyers working in the sector we are not Luddites if we recognise that the regulation surrounding workers and employees is satisfactory and lawyers should be mindful of undermining it. We can embrace advances in artificial intelligence, voice recognition, and management by algorithm without also embracing bogus self-employment as the default mode for delivering services. For a profession that prides itself in being able to make conceptual distinctions, we should recognise that technology is not to be equated with one-sided flexibility that suits only companies. 

    The assumption of the article is that the law is falling behind in failing to recognise an “Uber/Deliveroo age”. We are showing our age when we recall that generations used to be defined by the clothes they wore and the music they listened to, rather than the companies they were exploited by. Technology has decidedly changed the world of work for the better, but we should not allow changes in working patterns, how we communicate with each other, and how we are managed, to mask changes to the basic levels of fairness that companies treat individuals with.  That, after all, is the delicate balancing act that our existing employment law is designed to protect.

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