Since our historic win against Uber at the Employment Appeals Tribunal the Uber spin machine has been working over time. Uber, like other so called gig economy operators the IWGB has taken on before, is trying on the same old bogus arguments that worker rights will take away your independence and flexibility. But there is nothing about our legal challenge that threatens flexibility at all. When we win after Uber exhausts all remaining appeals, drivers can have the same flexibility they now have plus the additional flexibility of more money and paid holidays!
We feel so strongly about how important it is to tell drivers the whole truth about the case we are issuing a challenge to Tom Elvidge and Jonathan Ollivent from the Uber UK podcast to join us to record live with UPHD reps to discuss details of the case, what the law requires Uber to do and its implications for UK drivers. Drivers would really benefit from this exchange as Uber management would be free to challenge our claims and likewise we could challenge theirs. What could be better?
In truth, our case is very, very important for two reasons. First, it has the potential to stabilise driver incomes by putting a floor in the market below which no driver earnings may fall while, at the same time, not placing any upper limit so you can continue to earn as much you can. Second, if Uber is successful then many employers will copy cat the model and undermine the rights of many workers. Many people, including our children, are depending on us to hold the line.
To recap, we fought for and secured worker rights not employment rights. Worker status entitles self employed Uber drivers to be guaranteed the national minimum wage of £7.50 per hour for every hour logged in on the platform plus 28 days paid holiday. If you fall below the minimum wage after costs for every logged in then Uber will have to top you up. But note: you can continue to make much more than the minimum wage also. This is still all up to you because you remain self employed, running your own business free to choose how, where and when to work.
We qualify for these worker rights because of the level of control Uber has over our work and because we are integrated to be part of Uber's business. These rights for self employed workers are there to prevent exploitation.
Uber continues to onboard at huge numbers of people despite the obvious slow down in work. This is because it costs the company nothing to add another driver and more drivers means a shorter wait time for customers which is good for Uber even if your earnings suffer as a result of the company flooding the circuit.
Remember, Uber says you are your own boss but only up to a point. Drivers cannot set the fare, we cannot collect fees for vehicle damage except via Uber at their sole discretion, we are rated by customers and those ratings can lead to dismissal by Uber. They can refund fares from our account without even telling us and it will be up to us to argue to get that money back. We don't know who the customer is or where they are going. Uber switches on and off the trip preference options at its discretion. Cancelling jobs is a violation of the driver contract according to the the Uber cancellation policy. Make no mistake Uber really is the boss and to be the boss Uber must accept responsibility for minimum wage level income guarantees and holiday pay. So are you really your own boss, are you really in control of your business? Not completely and this is why parliament and the courts have decided you are entitled to a minimum wage guarantee and holiday pay. It is in fact, your leverage to actually be your own boss and to protect your business interests so do not fail to protect these rights.
So time to set the record straight starting with the following claims which can be found on this web page Uber created to communicate to drivers about the tribunal case.
What’s this case about?
Drivers use the Uber app as independent, self-employed contractors. This means that drivers can choose when and where they drive and are able to make more than a fixed hourly wage, depending on how they choose to use the platform.
It is true that Uber drivers are independent, self employed contractors and we are certainly not challenging that. It is also true that drivers can choose when and where we drive and again there is nothing about our challenge that threatens that flexibility. We can assure you we are certainly NOT challenging Uber to pay us a fixed hourly wage. We want our incomes above the minimum wage threshold to continue to be variable so we have the opportunity to earn as much as we can.
In fact, all Uber is required to do by law is guarantee that drivers earn at least minimum wage after costs for every hour logged in on the platform. There is no requirement to pay a fixed hourly wage nor have we ever asked for that and the minimum wage is just that - a minimum floor of earnings for drivers not a maximum. It's a floor not a ceiling. Already cab drivers in British Columbia in Canada have such protections in law so we know this model works. If cab drivers there do not earn enough to reach minimum wage then their operator must make up the shortfall. If this can work in Vancouver then why not the UK?
Uber has often offered minimum guarantees in the past without sacrificing flexibility. In 2014, it offered an income guarantee in London and since then did so in Leeds, Guildford and Reading to name just a few cities.
It is really surprising that Uber refuses to obey the law and guarantee the minimum wage to drivers if it truly believes that drivers already make more than this across the board, If that is true, then Uber should have nothing to fear and would have no reason to continue appealing.
Ask yourself why it does? Do you really believe Uber when they say they are fighting the ruling for the sake of drivers?
A small group of drivers who have used our app in London took Uber to an employment tribunal claiming they should be treated as ‘workers’ rather than self-employed and therefore be entitled to a guaranteed minimum wage and holiday pay. In a preliminary hearing, the tribunal ruled in favour of the two drivers whose evidence they heard.
Unfortunately, Uber is using false and misleading language. In fact, 'worker' status is legally a category of self employment and this was even confirmed by the Supreme Court in 2014. In the UK there are three broad categories including:
- Employed - working for someone else who deducts PAYE and pays national insurance for you.
- Self employed and in business on your own account - this is when you run your own business, have full control and in business on your own account eg. a builder or plumber
- Worker - self employed but not in business on your own account but working as part of somebody else's business. You do not set the price or have responsibility for the customer and you have little opportunity to have someone else do the work for you.
We have successfully challenged to be recognised as worker and the rights Uber must respect are our right to be guaranteed the minimum wage after costs for every hour on the platform, and 28 days paid holiday per year. These rights are important and were given to all workers by parliament to prevent exactly the type of exploitation we now see at Uber. Most importantly, they serve as a floor in the market below which nobody can fall and acts as a buffer to stop Uber from continuing to drop prices and onboard far too many people when there is not enough work to go around.
The Mayor of London is a huge supporter of the London Living Wage which is now £10.20 per hour and even fights for hotel workers to receive this. Although we are licensed by TfL under the Mayor's authority he has yet to stand up for us. But that doesn't matter so much because we are standing up for ourselves with this legal claim and now we need you to stand with us too.
What does this mean for me?
There’ll be no change to your partnership with Uber at this time - the decision would only apply to the claimants in the summer 2016 case and Uber is appealing.
While technically this might be true, in reality, Uber will have to begin to respect worker rights or face a deluge of future legal claims. So if you want to join the claim and get what you are entitled to please join us. Membership is only £5 per month.
Why is Uber appealing?
We strongly believe that Uber gives people the freedom and flexibility to be their own boss - drivers can choose when and where they drive. Uber does not set shifts or minimum hours - people can switch the app on and off whenever and wherever they wish to. Many people can and do combine driving with Uber with family commitments, starting their own businesses or even driving with other private hire firms. The overwhelming majority of drivers who choose to partner with Uber do so because of the freedom and flexibility it gives them and want to remain self-employed.
Again, Uber is scare mongering by trying to create the impression that worker status will destroy flexibility. It will not. Why should it? Uber has already successfully conducted income guarantee schemes without taking away flexibility. Uber also are trying to dupe drivers into thinking 'worker status' means you are no longer self employed. This isn't true. Just have a look at Uber's crafty language. They never actually say a 'worker' is not self employed. They just want to trick you into thinking it is.
What would ‘worker’ status mean?
As far as we are aware, people who work with other apps similar to Uber - as well as the majority of private hire drivers in the UK - are independent contractors rather than ‘workers’. But if drivers were classified as workers then things would of course have to change. While partner-drivers would be entitled to a guaranteed national minimum wage (currently £7.20 an hour) and paid holiday there would also be less freedom to decide when and where to drive.
This isn't true. Addison Lee drivers have also been found to be workers and IWGB has won a raft of cases against courier firms including Addison Lee, City Sprint and others. Again, Uber is using misleading language. 'Workers' are independent, self employed contractors. It is just that we qualify for some minimum guarantees from the contracting firms and Uber is spending millions of pounds to fight to deny you of these rights. The UK minimum wage is actually £7.50 per hour not £7.20 and again, we dispute that an earnings guarantee should in any way interfere with driver freedom and flexibility.
Why couldn’t I keep the benefits of being my own boss and also get the benefits of being a worker?
There’s a lot of uncertainty as to what being a worker would mean for drivers and there would be lots of complexities to be worked out. But if Uber had to guarantee drivers a wage just for being logged in to our app then we would of course have to ensure drivers took most, if not all, of the trip requests they received and only logged in at times and in places where people want to get a ride.
Actually, there is no uncertainty at all. All Uber has to do is guarantee drivers earn at least the minimum wage. If Uber's claim that drivers already earn more than this is true then Uber will hardly notice the difference at all. As for trip confirmation, Uber already insist on this in the cancellation policy which says “Uber reserves the right to enforce a breach of your contractual agreements or restrict access to the platform if you are found to be in breach of the cancellation policy.” In fact Uber's cancellation policy before we started this legal challenge was to log drivers out for 10 minutes after three failures to accept a job. This was later reduced to 2 minutes. Now drivers are logged out but can log back in. Clearly, Uber modified its behaviour due to our legal challenge. If we were to lose you can expect Uber to tighten up the rules again even though they claim we are our own boss.
As for logging in only at times or in places where people want to get a ride - again this is scare mongering. Uber ran income guarantee schemes before without restrictions. Another option Uber don't mention is the possibility of reducing it's commission. With the economies of scale Uber now enjoys does it really need to take 25% from each driver? How about cutting it back to 10%?
But why would Uber need to do this?
If all drivers had to be classified as workers then all drivers who use Uber would be entitled to exactly the same amount of money per hour - regardless of when and where they drive and even if they only logged in at times when there are no fares to be made. Someone could even be entitled to be paid simply for logging into the app while they’re sitting at home! In fact, unless there were changes to how drivers can use the Uber app, there would be nothing to stop someone logging into several apps at the same time and being paid an hourly wage by all of them. That obviously wouldn’t work.
Wrong! Wrong! Wrong!
All drivers would not be entitled to make the same amount of money though all drivers would be guaranteed to net earnings above the minimum wage. Beyond the minimum wage, the sky is the limit. Some will earn much more than others depending on skill, location and service standards. The Judge in our tribunal hearing looked at the multi apping issue and decided it was not realistic due to (i) there is no such competitor in the market place and (ii) drivers are auto logged out when they don't accept jobs. Refusing jobs is a breach of contract according to Uber's own cancellation policy.
What do other drivers think?
While we know some people might prefer the fixed wage and holiday pay that comes with being a worker, a recent opinion poll found the vast majority of drivers would rather keep the freedom and flexibility of being their own boss. In fact, that’s the reason most drivers signed up to Uber in the first place. We always want to listen to drivers who use our app and so we’ll carry on regularly inviting partners in to talk to members of the Uber team.
And yet again Uber is misleading drivers about our legal case. Being a worker does not mean you get a fixed wage, it mean you get a minimum earnings guarantee of the minimum wage. There is no upper limit set because of worker status. We too want the freedom and flexibility of being our own boss. In fact the clue is in the name of our union - the Independent Workers Union of Great Britain. Uber's suggestion that there is a choice between self employed worker status and flexibility is a false choice. It is very sad that Uber has gone to such lengths to mislead drivers about this.
And what about black cab drivers and other private hire drivers?
Black cab drivers and most private hire drivers have been self-employed for decades. Many long-standing private hire drivers have signed up to Uber because we offer far more freedom and flexibility than many traditional operators. Although this ruling only applies to the claimants in the case and is being appealed if it was applied to other private hire operators (or to some of the apps taxi drivers use to get fares) then there could be a wider impact, but it’s too early to say.
Black cab drivers are truly independent to work when and where they like without an operator. Every private hire driver is 100% dependent on a licensed private hire operator for work who deduct commission and/or circuit rent. Yes it is true that worker status could be applied to drivers at other operators as we have already seen with Addison Lee.
To learn more please take the time to read the Uber Employment Tribunal judgement here (which was highly critical of Uber) and the Employment Appeals Tribunal judgement here. You can also read the Addison Lee judgement here.
If you would like learn more or join the claim please drop us a note at Office@iwgb.org.uk or phone 0203 490 7530