Ben Wray – Focus shifts to government enforcement as platform companies seek to swerve legal defeats

In the UK, Uber is acting like it is business as usual following its Supreme Court defeat last week but is under increasing pressure to comply, while in Italy a public prosecutor has hit gig companies with a huge €700 million fine.

Ben Wray is a freelance journalist leading BRAVE NEW EUROPE’S Gig Economy Project.

This series of articles concerning the Gig Economy in the EU was made possible thanks to the generous support of the Foundation Menschenwürde und Arbeitswelt  

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We are at a “turning point” in the battle for gig workers’ rights, where it is no longer “a question of interpreting the rules, but of applying them”.

That was the analysis of two labour law academics, Antonio Aloisi and Valerio De Stefano, following key developments in the UK and Italy this week over the compliance of digital platform companies in the transport sector with employment and occupational health & safety law.

Uber seeks to avoid driver claims in the UK

In the UK, Uber has responded to the Supreme Court ruling last Friday which found that their drivers were workers, entitled to sick leave and holiday pay, by seeking to play down the significance of the ruling and warn drivers off seeking compensation claims.

Jamie Heywood, Uber manager for northern and eastern Europe, said: “A small number of drivers from 2016 can be classified as workers, but this judgment does not apply to drivers who earn on the app today.” Heywood cited changes which have been made since 2016 to Uber’s operations which he claimed gave drivers more control over their earnings. Uber’s message was delivered directly to all of its drivers as soon as the result was announced last Friday [19 February].

Nigel McKay, a lawyer acting on behalf of the ADCU and GMB unions, which brought the case against Uber forward, said the company’s statement was “very misleading”.

Uber is trying to deter people from the claim with this message,” McKay added, explaining that they believe those drivers who were part of the original claim are due £12,000 in compensation from Uber for back-pay and benefits.

There has been a surge in drivers pursuing compensation claims since the verdict. It’s thought that in total around 20 per cent of the company’s 60,000 UK drivers have now launched claims, according to Wired. Deutsche Bank have estimated that a worst-case scenario for Uber would be compensation pay-outs in the UK worth around £1.8 billion.

Yaseen Aslam and James Farrar of the ADCU union, which represent app-based drivers in the UK, have now written to the Mayor of London, Sadiq Khan, demanding that he takes enforcement action on Uber.

We have been dismayed by Uber’s reaction to the ruling and the deliberate decision of management to misinform Uber drivers about the broader applicability of the ruling,” they wrote. “In short, Uber has doubled down on misclassification and is determined to continue with a business model the Supreme Court described as a ‘mischief’”.

Citing the case of New York, where Uber drivers have been hired by the platform after enforcement measures led by mayor Bill DeBlasio, Aslam and Farrar write: “As a result, for hire vehicle numbers have dropped by 20,000 and driver incomes have increased by 25%. Congestion has eased, vehicle utilisation has increased and poverty has been alleviated, all with no appreciable detriment to the public.”

Explaining the six year legal battle which was finally won at the Supreme Court last week, Farrar and Aslam write: “For six long years, the predominantly BAME private hire driver community have bravely stood up collectively for their rights and they have won the argument every time. Our victory last week comes after many years of painstaking organising, campaigning and strategic litigation undertaken by the ADCU and GMB unions.

Now, there is a very real risk that Uber will simply shrug it off and carry on exploiting as before unless you act now. If Uber gets away with ignoring the law despite a Supreme Court ruling, it will represent a catastrophic failure of our political, regulatory, and legal system. Moreover it would represent a terrible betrayal of low paid workers who have worked so hard to collectively organise and are so deserving of your protection.”

Labour leader Keir Starmer joined voices calling for the UK Government to ensure Uber comply with the Supreme Court ruling, stating: “The Supreme Court ruled that Uber must treat its drivers as workers who are entitled to the minimum wage and holiday pay. The Government must enforce this landmark ruling. Gig economy workers, who are in low paid and insecure work, must be ensured basic rights and protections.”

The UK Government has so far provided no public mechanism by which app-based drivers can learn of their rights or pursue settlements. A government spokesperson said: “We have always been absolutely clear that employers must take their employment responsibilities seriously and cannot simply opt out of them.”

Italian public prosecutor fines platforms €733 million

Following an investigation by Milan’s Public Prosecutor Office, Glovo (‘Foodinho’ in Italy), JustEat, Deliveroo and Uber Eats have been told to regularise the situation of 60,000 delivery riders and fined them €733 million in penalties, for breach of occupational health & safety regulations. The fine will be reduced by a quarter if the companies comply with the law within 90 days.

“Riders cannot be treated as slaves, they are often foreigners with regular permits in Italy, citizens to whom we are denying a future,” lead prosecutor Francesco Greco said in announcing the results of the year and a half long investigation, which had been launched following several road accidents involving delivery riders.

Greco added that riders had “performed an essential function both to bring food to a lot of people and to allow many businesses to survive” during lockdown, and many had ended up hospitalised.

In 2020, the Italian Supreme Court had ruled in a case involving Foodora (now ‘Foodinho’) riders that they were employees, not self-employed. Greco came to the same finding, stating that: “The contracts signed are for self-employed workers, but in reality they are coordinated and continuous collaborations and therefore para-subordinate workers.”

He stated that delivery riders “represent the fundamental link, without which such companies – quite simply – could not function”.

Riders for Rights Italy told Wired Italia that the investigation was a “very heavy blow to the narrative of the platforms, to their business model”.

Aloisi and De Stefano, co-authors of ‘Your boss is an algorithm’, said that the Milan investigation chimed with the findings of courts in France, Spain, the Netherlands and the UK, and that “many platforms, especially in the logistics sector, will have to realise that their business model is not compatible with an organisation made up only of allegedly independent suppliers”.

EU Commission consultation opens

Meanwhile, the EU Commission has started work on its Directive to regulate platform work, its consultation opening to ‘social dialogue partners’ yesterday (24 February). Click here for details.

Gig workers and organisers joined protests in Europe, North America and South America to say ‘No Prop 22 in Europe’. View #StruggleForRights on Twitter to see images of the Alianza Unidos World Action protests.

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