Employment law has long struggled to adapt to new forms of employment – who should be responsible for the protection of workers rights, from minimum wage and working time to discrimination law in today’s fragmented economy? These fundamental questions are now returning to public discussion as a result of the meteoric rise of so-called ‘crowd-work’, where online platforms match individual workers and customers to perform ‘gigs’, ‘rides’, or ‘tasks’.
Leading crowd-work platforms have already become household names: think of Uber for taxi drivers, Amazon’s Mechanical Turks for digital services, and TaskRabbit for domestic work. Their proposition is enticing: as a customer, your driver, secretary, or handyman is but a few clicks away. Initial vetting and a continuously updated rating system ensure high quality standards, as customers are asked to leave feedback for each task performed. As a worker, you will be able to find work wherever it is available, in a fully flexible way to suit individual schedules, and using tools already at your disposal.
The reality behind crowdwork, on the other hand, is often one of precarity and exploitation: Uber drivers risk driving long hours without earning minimum wage levels, and will find themselves bared from the platform if their rating falls below a (high) threshold; Mechanical Turkers often struggle to be paid even for work they have already completed.
Perhaps unsurprisingly, therefore, lawsuits have begun to spring up around the world – from Uber’s home in California to several European countries, including most recently the United Kingdom. The question at stake is invariably similar: can electronic platforms be considered the employer of their ‘partners’, ‘taskers’, or ‘turks’? It is only if that question can been answered in the affirmative that workers will be able to enjoy key rights such as the minimum wage or working time protection. A string of recent cases in the United States has already grappled with the question whether Uber ‘partners’ should be classified as employers; with the help of the GMB trade union, a number of drivers last year launched a similar claims before an Employment Tribunals in the United Kingdom.
Uber’s official position is to assert that the platform merely acts as an agent for individual drivers (or ‘transport providers’), and cannot therefore be characterised as their employer. From a lawyer’s perspective, however, this assertion is of little importance: UK Courts have long accepted that it is the reality of the underlying relationship, rather than any label chosen by the parties, which matters in characterising employment. It was therefore perhaps unsurprising that in a late 2016 decision in Aslam v Uber BV the Central London London employment tribunal has ruled that Uber drivers are workers for purposes of s.230(3)(b) of the Employment Rights Act 1996
As I have argued in my recent work The Concept of the Employer, the law should instead rely on a series of functions traditionally exercised by the master or employer. Over the course of the last century, employment law has placed a range of duties on those with the power to hire and fire workers, to control their daily work and pay, and to sell the products of their services on the open market at predetermined rates.
The key question in upcoming domestic litigation will therefore be the extent to which Uber has exercised the five core functions identified in the case law. An increasing number of online resources provide insights into the reality of the relationship between the platform and its drivers: through its app, the platform has close control over the routes drivers are to choose and the prices customers will be charged for each ride. All financial transactions take place via the app, which also sits at the core of Uber’s rating system, enlisting customers to act as the platform’s agents in monitoring worker performance. Even the supposed freedom to work when and as desired is mostly illusionary: ratings are carried from engagement to engagement, and a refusal to accept a series of offers will soon have an impact on a drivers’ ratings.
In my mind, there is therefore little doubt that Uber should be classified as the employer of its drivers, who would therefore be guaranteed access to the core of fundamental worker rights in English law. Even customers will profit from such a decision: well-rested drivers will be much safer, and in the unhappy event of an accident or other problems, they too will be able to assert their claims for reparation against the employing platform.
Jeremias Prassl is an Associate Professor in the Faculty of Law at the University of Oxford, and a Fellow of Magdalen College.