Uber decision in the EAT: drivers win!

November 10, 2017 at 11:17 am (GMB, Human rights, law, posted by JD, transport, workers)

Barrister and employment law specialist Daniel Barnett reports:

The Employment Appeal Tribunal has just handed down its decision in the Uber decision, upholding the employment tribunal’s ruling that Uber drivers are ‘workers’ and thus qualify for workers’ rights.

* BBC report here

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Uber case decision – featuring Queen Gertrude

October 30, 2016 at 8:21 pm (GMB, Human rights, law, posted by JD, workers)

Uber app
Getty Images

By Katie Lancaster of Farrer & Co.
(posted 28/10/16)

Well, well, well – Ian, the Black Cab Driver, who was born just off the Caledonian Road and who drove me home from the office late last night you are absolutely correct – the Employment Tribunal “is not silly”, they know what a taxi driver is when they see one and, most significantly, they have decided that Uber drivers are not genuinely self-employed and are in fact “workers”.

The Employment Tribunal did not go so far as to say that the two Uber drivers were working in conditions of “modern-day slavery”, as suggested by Ian, and they were not asked to determine whether or not the Uber drivers were employees, but they did agree with Tom Linden QC’s arguments that the two Uber drivers who brought their case are “workers” within the meaning of s.230 of the Employment Rights Act 1996.

The significance of this judgment is that as workers, Uber drivers will be entitled to:

  • 5.6 weeks’ paid annual leave per year (equivalent to 28 days’ leave including Bank Holidays)
  • a maximum 48 hour average working week
  • statutory minimum daily and weekly rest breaks
  • the national minimum wage and national living wage
  • protection under the ‘whistleblowing’ legislation
  • protection against unlawful discrimination
  • not to be treated less favourably if they work part time
  • protection against unlawful deductions from wages

Workers do not have the same rights as employees, as workers are not entitled to statutory employment rights such as: unfair dismissal, statutory redundancy payments or TUPE protection. Even so, the implications for Uber are significant in that a requirement to pay a driver the minimum wage and 5.6 weeks’ holiday per year is not to be sniffed at – particularly given the sheer volume of Uber drivers on the roads in the UK.

What next?

It is inconceivable that Uber will not seek to appeal this decision, I believe they have already said that they will appeal, and the appeal will be fascinating to follow. In the meantime, this decision will also have far broader significance than Uber drivers, as the “gig-economy” spreads far and wide and there is no doubt that the significance of this case will be picked up by anyone working under similar terms and conditions. Following hot on the heels of the announcement earlier this month that the Prime Minister has engaged Matthew Taylor (previously head of the No 10 Policy unit under Tony Blair) to lead a review of workers’ rights and practices, this case comes at a particularly relevant time and will be followed closely.

I do not normally recommend reading Employment Tribunal decisions as the most pleasurable way to spend a Friday evening, but on this occasion I commend it to you. Following a quick skim-read of the decision it has something for everyone: excellent arguments made by Mr Reade (for Uber) and Mr Linden (for the drivers, supported by the GMB union), a hard fought legal dispute, a David vs Goliath struggle and victory for the underdog, brilliantly summed up by the Tribunal Judge Mr Aslam in, at times, highly amusing terms, quoting Shakespeare – Hamlet’s mother no less. If nothing else, for anyone who intends to take a taxi within the next 12 months, I suspect it will be essential reading!

I will leave you with my favourite quote from the Employment Tribunal’s Decision in paragraph 87:

We have been struck by the remarkable lengths to which Uber has gone in order to compel agreement with its (perhaps we should say its lawyers’) description of itself and with its analysis of the legal relationships between the two companies, the drivers and the passengers … Reflecting on the Respondents’ general case, and on the grimly loyal evidence of Ms Bertram in particular, we cannot help being reminded of Queen Gertrude’s most celebrated line:

The lady doth protest too much, methinks“. Hamlet, Act III, sc2.

Employment law is brilliant. It is real, it is relevant, and it is alive and kicking.

Link to the case can be found here.

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The unions’ Trident dilemma

April 10, 2016 at 4:42 pm (GMB, Guest post, labour party, Unite the union, war, workers)

(c) Licenced to London News Pictures 09/04/2015. Barrow-in-Furness, Cumbria, England. General views of the Devonshire Dock Hall at BAE Systems in Barrow. The Trident nuclear submarine project, which is planned to be built by BAE Systems in Barrow, has an uncertain future due to the potential of a Labour/SNP government. Photo credit : Harry Atkinson/LNP

Above: BEA in Barrow: thousands of jobs at stake 

Guest post by Bill Sharpe 
Arguing against the renewal of Trident must have seemed so simple, an easy win for the Corbyn Labour leadership, swords into ploughshares and we all walk off arm in arm into a Trident free sunset – maybe singing the Red Flag. That may well have been how the Corbynistas saw it playing out, yet right from the outset when they started this particular hare running, the reality was very different. The parliamentary timetable was always against Labour having any real say, it was always going to engulf the Party, and particularly the PLP which was not going to be helpful as the key unions (GMB and Unite) were always going to be for renewal. Everything points to a fudge at the next Labour Party conference and with it inevitable demoralisation among the Corbynistas. My union, the GMB, will be quite happy with this, as we have thousands of members whose jobs depend upon Trident.

The one thing that may change this is how Unite votes on the matter at its forthcoming Policy Conference. Although Unite’s defence workers are fully behind renewal, the conference has a number of anti-Trident resolutions on the agenda and if it were to vote against renewal it would once again change the balance of power within the Labour Party.

Unite is generally seen as the most influential left wing union and socialists will view Unite’s forthcoming debate primarily in political terms – a left vs right `shoot out’: on one side the defence industry workers who are seen (probably rightly) as pro – imperialist, right wing, reactionary etc etc; on the other side the union’s lefts who want to scrap Trident, end austerity and are Corbyn supporters – also probably true. Such a view is to miss the point. The Unite debate will not be a political but an economic, a trade union, matter – or at least I for one would hope so.

Unite Policy Conference delegates have three possible choices: they can vote for `unconditional support’ for renewal, `scrapping only’ if suitable alternative work can be found or `scrapping regardless’ of whether alternative work can be found. For sure, the `scrapping only’ positon will bring together a big majority within the union leaving `unconditional support’ the minority position. There is however a fatal flaw in the ‘scrapping only’ standpoint.

When the Berlin wall fell the defence industry went into free fall with many thousands of jobs lost. In response the unions undertook a number of studies looking at alternative work; some were very imaginative but none were viable. What employer was going to pay top dollar to some of the most highly skilled workers in the county (after space technology putting together a Trident submarine is the second most complex technical exercise humanity undertakes) concentrated in one of the most inaccessible places in the county to build white goods or wind turbines? The alternative work plans were seemingly consigned to the dustbin of history. However some 25 years later variants of these plans were resurrected, finding their way onto Corbyn’s election campaign website as part of his pitch to scrap Trident.

While intellectually lazy and/or self-deluded socialists have tacked onto the end of their anti- Trident arguments the demand for alternative work, so resolving (to their own satisfaction) the problem of mass redundancies and the devastation of Barrow and surrounding areas, workers in the industry have looked into the matter and are telling us there is no such thing as alternative work. Consequently ‘scrapping only’ is in effect a vote for renewal – a position I for one hope the Unite conference will adopt. However many on the left, including it would seem, many in Unite, stand on the ‘regardless’ position.

The problem with the ‘regardless’ position is when the rhetoric and caveats are removed such resolutions are calling on the union to support the sacking of several thousands of their fellow members. For a union to vote for a `scrap anyway’ resolution would be a fundamental violation of its core functions: the defence and enhancement of terms and conditions and the aspiration to organise the entire working class regardless of their political views.

This issue illustrates in a very stark manner the underlying and enduring difference between general class interests, which translate into political interests – in this case the scrapping of Trident – and specific sectional interests which are unions’ economic concerns and in this instance mean keeping Trident.

In saying unions should support ‘scrapping only’ I am not saying a union is always right: such a view would suppress any critical judgement of unions and deny any right to independence of thought by socialists when dealing with unions: it would mean (at best) becoming a more realistic variant of the unions’ house journal the Morning Star. I am, however, saying socialists should recognise that a union must pursue its members’ interests, even when these come into conflict with broader socialist views.

For socialists who wish to be critical of unions there are two possible approaches: one can be characterised as `politicising unions’, which starts from recognition of the division between the political and economic as a given and as far possible attempts to mitigate the sectional and where possible merge the sectional into a more general class interest. This is done within the unions themselves around industrial matters, but more importantly engaging with and helping develop a socialist political culture within the unions.

To begin to undertake such a task one has to recognise the existence of the political / economic division. But in this period of union decline the dominant approach of leftists and would-be Marxists is to be seemingly unaware or indifferent to the division. There are clear parallels here with 3rd period Stalinism. In this approach the left is continually attempting to turn the union into a political rather than an economic entity, they view it as a form of political party and continually demand its programme appropriate to a party – political unionism. Such an approach can only succeed by either superseding or suppressing the union’s economic function of defending member’s terms and conditions.

A ‘scrap anyway’ positon illustrates this point in a very blunt manner, as it inescapably means supporting the loss of many thousands of jobs (an unfortunate by-product of the greater good) and with it supressing the unions function of defending members jobs.

The ‘union as a political party’ approach is also how the best trades unionists tend to perceive (and reject) what socialists are about: it needs little imagination to work through the political lessons defence delegates will take away from Unite Trident debate as they listen to their `left wing’ bothers and sisters explaining why they should lose their jobs.

The Unite Trident debate holds within it two possible ways socialists can approach unions: if their conference can get beyond a debate about ‘scrapping regardless’, which is to recognise they cannot support non-renewal. They will then be in a position to play a pivotal role in taking the alternative work debate forward. At present the demand for alternative work is merely a rhetorical prop for socialists, with no real content – based on present realities it can go nowhere. Unite has the ability to demand that labour links alternative work for the defence industry into a broader call for a rebalancing of the economy which should have centre stage in Labour’s 2020 manifesto.

The ability to move the alternative work debate on is made possible by the space opened up by Corbyn’s victory: it should be seen as part and parcel of the potential which now exists for the refounding of a labour movement. Although in many respects this will be very different from 1900s, now as then, socialists have a choice: either they engage with this or cut themselves of from it: posturing and empty sloganising will inevitably fail, but pursuing the politicisation  of the unions (as opposed to the left’s agenda of “political unionism”) may just offer a way through the dilemma.

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