Social Europe

  • Themes
    • A ‘manifesto’ for 2024
    • Global cities
    • Strategic autonomy
    • War in Ukraine
    • European digital sphere
    • Recovery and resilience
  • Publications
    • Books
    • Dossiers
    • Occasional Papers
    • Research Essays
    • Brexit Paper Series
  • Podcast
  • Videos
  • Newsletter
  • Membership

Putting the brakes on the spread of indecent work

Ruth Dukes and Wolfgang Streeck 10th March 2021

Important legal victories for workers against platform corporations remain partial and limited in the absence of legislative and institutional change.

Uber v Aslam, UK Supreme Court
Ruth Dukes

The decision of the UK Supreme Court in the case of Uber v Aslam has caused a great deal of excitement, understandably so. The question before the court was whether Yaseen Aslam and others, for some time drivers with Uber, had been self-employed or, alternatively, ‘workers’ with statutory rights to a minimum wage and paid holidays.

In UK law, ‘worker’ is defined in statute, with the definition referring to the kind of contract agreed with the putative employer. It had thus been possible to argue, as Uber did, that the written terms of the contract were decisive, taking the worker outside the statutory definition and application of associated legal rights. The contract with Aslam et al had been drafted in such a way, Uber argued, that they were self-employed with no employment rights—the company a mere intermediary, matching customers with drivers.

Uber v Aslam,UK Supreme Court
Wolfgang Streeck

Protecting vulnerable workers

The Supreme Court reasoned that ‘worker’ status was a matter, principally, of statutory interpretation. It was appropriate to consider the purpose of the statutes in question and to interpret the definition of ‘worker’ accordingly.

Join 23,000+ informed readers and stay ahead with our insightful content. 

It's free.


Thank you!

Please check your inbox and click on the link in the confirmation email to complete your newsletter subscription.

.

The court said that the purpose was to protect vulnerable workers from unfair treatment, including low wages and excessive hours. The statutory category of ‘worker’—wider than the category ‘employee’—had been used in the statutes precisely to ensure that ‘subordinate’ and ‘dependent’ workers enjoyed legal protection.

Because the definition of worker is a matter of statutory interpretation, analysis should not begin with the terms of the written contract, the court ruled: ‘It is the very fact that an employer is often in a position to dictate contract terms … that gives rise to the need for statutory protection in the first place.’ If too much weight were given to the written terms of the contract, freedom would be handed to the employer to avoid its obligations.


Become a Social Europe Member


Support independent publishing and progressive ideas by becoming a Social Europe member for less than 5 Euro per month. Your support makes all the difference!


Click here to become a member

The correlate of worker ‘vulnerability’—of ‘subordination’ and ‘dependence’—was control and a key issue was the degree of control wielded by Uber over its drivers. On that measure, the drivers were clearly workers, with Uber making use of the app itself and a customer ratings system to control the manner in which drivers performed the work. Moreover, from the moment when they logged on to the Uber app, the drivers were ‘working’ for the purposes of determining wages and working time—even as they waited in their cars for the next ride request to ping.

Indecent treatment

The Supreme Court’s decision is undoubtedly an excellent one, drawn in broad terms with reference to broad principles. Because of the weight accorded by the court to the degree of control exercised by Uber over the driver, the ruling strikes at the heart of the gig-economy business model. With it, the court has added its voice to that of courts in France, Spain and the Netherlands, all finding that gig workers are not self-employed but workers or employees with employment rights.

It has provided further confirmation that platforms such as Uber have acted as Trojan horses, smuggling indecent treatment of workers from Silicon Valley into Europe, behind a façade of ‘ride-share’, ‘zero-cost transactions’ and ‘entrepreneurship’. Move fast and break things.

That said, it remains the case that this particular decision applies directly only to those workers named in the litigation and, by implication, others employed on identical contractual terms. Since the legal proceedings began, Uber has amended its contracts and is at liberty to do so again. While it seems highly likely, given the terms of the court’s decision, that those employed under the new contracts are also workers, it will take a new Employment Tribunal decision to confirm that this is so, creating the opportunity for another years-long appeal process. Workers employed by platforms other than Uber will also have to bring their own legal challenges before the tribunal.

Under UK law, moreover, the rights of workers—those who are not employees—are meagre. The minimum wage is £8.72 per hour for those aged 25 and over, well below the living wage calculated according to the cost of living (£9.50 per hour, £10.85 in London). Workers have rights to paid holidays but not sick pay or maternity/paternity leave. They have no legal protection against redundancy or unfair dismissal. And by reason of their extreme precarity, and the ability of platforms to deactivate assertive workers without explanation or legal recourse, gig workers face particular difficulties in attempting to enforce those few rights they have.

Political solution

This points to the need for a political solution. Court rulings in the tradition of progressive labour law must be backed up by legislative intervention. The taming of the new world of gig and platform work requires far-reaching institution-building, designed to bring legal concepts such as ‘employment’ to life. An active, interventionist state is needed to redress the fundamental imbalances in contemporary employment.

Social-democratic parties and governments, in particular, must urgently address three problems, so that progressive interpretations of legal concepts such as employment can realise their full significance for workers on the ground. Through such action, parties of the social-democratic left can re-establish themselves as trustworthy representatives of their original constituency.

First, gig workers’ access to legal rights must not be dependent on the willingness and ability of individual workers to bring claims to the courts. Legislation is needed to clarify the employment status of the workers and the rights they have. A reversal of the burden of proof may be useful, with the onus falling on the platforms to prove that workers are self-employed (rather than on the workers, to prove that they are employees).

The European Commission has opened a consultation with the social partners on the rights of gig workers. Given how little power the unions have at EU level, however—and the extent to which European social policy has fallen into desuetude—there must be national action too, by trade unions and political parties.

Where a need for litigation arises, workers must be able to bring a claim without fear of deactivation by the platform: without improvement in the job security of increasingly precarious workers, even the most generous legal entitlements may not be worth much. Job security and employment protection will in any case become central issues as the new forms of gig work and platform employment spread, in ever new iterations as the law tries to catch up with them.

Closing loopholes

Secondly, the practices of Uber and other platforms stand as a stark reminder that employers will always seek new ways to circumvent the legal rights of workers, creating new forms of employment to which such rights don’t apply. If labour law is to have effective power to protect workers, escape routes and loopholes must be foreclosed by legislation, in so far as is possible.

A good first step would be the creation of a single employment status for all workers, associated with the same comprehensive rights—doing away with divisive distinctions such as that in the UK between ‘employees’ and (second-class) ‘workers’. Again, governments must be pressed to legislate for more equality and solidarity.

Thirdly, and most importantly, we need a fundamental overhaul of the rights and opportunities for workers to organise in trade unions and pursue their interests collectively, through legal action, political representation and industrial action. Ultimately this requires a further departure from voluntaristic traditions of trade unionism and industrial relations where they persist. Pressure must be mounted on governments to facilitate collective action by creating supportive, legally-grounded institutions, at the workplace and beyond.

The availability of representation by trade unions can no longer be left to the vagaries of the economic and political marketplace. In the big Fordist factories of the past, the organisation of the labour process enhanced the collective organisation of unions. Not so today in the dispersed workplaces of the new service industries, where workers may rarely meet and are anyway placed under sophisticated technological surveillance by their employers.

In the short term, the most significant implication of the Uber v Aslam decision is arguably that it recognised that gig workers as ‘workers’ have rights to freedom of association—including a right to strike and to have a union campaign for recognition for collective-bargaining purposes. Aslam and the other Uber drivers were of course supported by unions in bringing the case to court.

Industrial citizenship

In the longer term, the decision points to the need for political action and legislation to bring the institutional environment of collective organisation in line with the new working and employment conditions. This requires a reinvention of what used to be called industrial citizenship, which can be brought about only by public policy under the pressure of vigorous political action by unions.

A renewal of the institutional and material conditions of freedom of association, adapted to the specific conditions of gig and platform work, would imply new and creative forms of what in American industrial relations was called union security—institutional protections of trade unions against employer attempts to prevent, undermine or take over organisations formed to represent the interests of more fluid workforces. Such provisions are needed everywhere in Europe—not just in the UK—and they need to fit divergent national institutional conditions and traditions.

Ruth Dukes and Wolfgang Streeck

Ruth Dukes is professor of labour law at the University of Glasgow and principal investigator on the research project Work on Demand. Wolfgang Streeck is a senior research associate and director emeritus at the Max Planck Institute for the Study of Societies.

You are here: Home / Economy / Putting the brakes on the spread of indecent work

Most Popular Posts

map of Black Sea Ukraine war: Russia’s hold on Crimea loosensStefan Wolff
Trump,Donald,November,insurrection Why Trump can’t win in NovemberReed Galen
Navalny,killed,Putin Shock therapy killed NavalnyAntara Haldar
Ukraine,war,Russia,conflict,victory Ukraine: a bitter armistice or war until victory?Frank Hoffer
Ukraine,war,Zelensky Ukraine war: Zelenskyy’s very risky moveStefan Wolff and Tetyana Malyarenko

Most Recent Posts

riders Milan Platform work directive—delivering rights for allLudovic Voet
UNSC Gaza: status of UN Security Council ceasefire demandAmanda Cahill-Ripley
homecare nurse Women at work: doing different jobs, still unequalWouter Zwysen
refugee wreck Mediterranean The missing migrants: myriad preventable deathsUgochi Daniels
stressed woman leader Women leaders in CSOs—overworked, overwhelmedEloïse Bodin

Other Social Europe Publications

Global cities cover pdf Global cities
strategic autonomy Strategic autonomy
Bildschirmfoto 2023 05 08 um 21.36.25 scaled 1 RE No. 13: Failed Market Approaches to Long-Term Care
front cover Towards a social-democratic century?
Cover e1655225066994 National recovery and resilience plans

Foundation for European Progressive Studies Advertisement

The Progressive Yearbook, now available!

With its fifth edition, the Progressive Yearbook can be considered an established and thriving tradition, through which FEPS wishes to reflect on the most important developments of the previous year and to try to imagine what the future has in store for 2024.

With this new volume, we prepare ourselves for a transformative year marked by pivotal elections. We cast a spotlight on the 2024 European Parliament elections and extend our attention to the broader political landscape. Reform of the EU treaties, enlargement, the twin transition and international developments are some of the topics of this year’s edition.

The book also includes an interview with the recipient of the FEPS Progressive Person of the Year award: Teresa Ribera.


DOWNLOAD HERE

Hans Böckler Stiftung Advertisement

Comparing living and working conditions: Germany out-performs the United States

This paper compares living and working conditions in the US and Germany for the year 2022 with a focus on economic, social and environmental standards. Emphasis is also placed on income and wealth inequality.

Twelve dimensions of comparison are used, split into 15 themes, examined with 80 indicators. Germany comes out ahead on 10 of the themes. When the relative sizes of the gaps are also taken into account, Germany gets an overall score of 23 and the US only 6.

This paper is, to the knowledge of the author, the only comprehensive comparison of living conditions in the US and Germany. The framing of the comparison is the analysis of two different types of capitalism. It underlines the limited role of per capita gross domestic product in the living conditions of the majority of the population while highlighting the impact of institutions and the type of welfare state.


DOWNLOAD HERE

ETUI advertisement

Benchmarking Working Europe: the ongoing quest for Social Europe

Given the political significance of this European election year, the European Trade Union Institute (ETUI) and the European Trade Union Confederation (ETUC) decided in their annual Benchmarking Working Europe report to provide a retrospective assessment of the state of Social Europe. Using fact-based evidence and analysis, this edition demonstrates that the new impetus for Social Europe of the past five years has led to important and long-awaited policy initiatives, including on minimum wages, platform work and corporate due diligence. Progress however remains fragile and fragmented.


AVAILABLE HERE

Eurofound advertisement

How to improve gender equality in the world of work?

Despite gender equality being a core principle of the European Union, women are less likely to be in employment than men in all EU member states and are paid less than men in almost every member state, with the pay gap larger in higher paying jobs.

Listen to research experts discuss how to tackle the gender employment and pay gaps in Europe in a Eurofound Talks podcast.


LISTEN HERE

Friedrich Ebert Stiftung advertisement

It‘s all about jobs: investing in Europe’s workers and qualifications for a competitive clean economy

An ecological miracle on the labour market? Or rather job losses? The impact on employment and job profiles in Europe of ecological modernisation is a question driving politics and society.

We have taken a close look at studies and forecasts on the development of the European labour market. One thing is clear: without qualified and motivated workers, the economy will not flourish and the modernisation process will come to a standstill. Europe must deliver on a massive scale in the coming years to remain at the forefront.

We spoke to trade unionists and experts: what trends do we need to shape, what risks do we need to avoid, what course do we need to set now? Key findings in this study from FES Just Climate.


DOWNLOAD HERE

About Social Europe

Our Mission

Article Submission

Membership

Advertisements

Legal Disclosure

Privacy Policy

Copyright

Social Europe Archives

Search Social Europe

Themes Archive

Politics Archive

Economy Archive

Society Archive

Ecology Archive

Follow us

RSS Feed

Follow us on YouTube

Social Europe ISSN 2628-7641