Calls for gig worker protection after British court rules Uber drivers are workers

Monday, 22 February 2021

Should Uber drivers be entitled to the minimum wage and holiday pay? Well, according to the United Kingdom's highest court, the answer to that question is a resounding yes.

A landmark employment decision by Britain’s Supreme Court classifying Uber drivers as “workers” and not self-employed has reignited calls for better protections of gig workers in New Zealand.

The court handed down a unanimous decision, quashing Uber’s appeal of a 2016 employment tribunal ruling that the ride hailing company must consider drivers as workers from the time they log on to the app, until they log off.

Under British employment law, the worker employment category had more entitlements than an independent contractor, such as minimum wage and holiday pay, but less than an employee, who was also entitled to maternity pay and could challenge unfair dismissals.

Employment lawyer Rosamund Webby said unions and employment advocates were seeking a similar third category for gig workers in New Zealand.

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The British Supreme Court handed down a unanimous decision, quashing Uber’s appeal of a 2016 employment tribunal ruling that the ride hailing company must consider drivers as workers from the time they log on to the app, until they log off.

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“There is a growing groundswell around a midpoint, which people call dependent contractors. This could cover be Uber drivers and courier drivers,” Webby said.

An Uber spokeswoman says given the ruling is specific to the British market, it has no bearing on conditions or case law in New Zealand

Under the current legal structure gig workers who think they should have entitlements such as minimum wage and holiday pay would need to prove they were not contractors but were employees, she said.

In December the Employment Court of New Zealand ruled against an Uber driver, who argued that he was an employee of Uber and tried to make a claim for an unjustified dismissal.

The court ruled the driver, Atapattu Arachchige was operating as a business on his own account under the Uber brand.

The Employment Court and Court of Appeal confirmed Arachchige had not lodged an application to appeal the decision within the 28-days the decision was made.

But Webby said depending on the circumstances and contractual arrangements, a decision similar to that in Britain was possible, but would have to be on a case by case basis.

An Uber spokeswoman said given the ruling was specific to the British market, it had no bearing on conditions or case law in or New Zealand

In a written statement Uber’s regional manager for northern and eastern Europe Jamie Heywood said Uber respected the court’s decision which focused “on a small number of drivers” who used the Uber app in 2016.

Heywood said since then the company had made “significant changes” to its business, including control over how they earned and providing free insurance in case of sickness or injury.

Uber did not answer questions about whether Uber drivers in New Zealand also received free insurance in case of sickness or injury.

Uber Eats driver Samuel Jackson supported a special category for drivers in New Zealand giving them greater protection.

Uber drivers want greater transparency around how the company calculates fares and payments to drivers.

“Ultimately I think it would be a good thing to happen in New Zealand, as the current system allows people to work well below minimum wage with no job security, rights, or control over how much they charge for their services,” Jackson said.

After expenses and before tax, he earned on average about $13 an hour.

“Yesterday was a good day, I made around $17 an hour before tax. The two days prior averaged at $15 an hour.”

The minimum wage is $18.90 an hour, increasing to $20 an hour on April 1.

He said Uber needed to be more transparent in how it calculated fares.

Another driver Mohamed Shalaby said his concerns were that under a dependant contractor category Uber could restrict hours for drivers.

Shalaby said he enjoyed the flexbility and freedom the job gave him as he was driving part-time for Uber Eats while looking for full time employment in the IT sector.

First Union spokeswoman Anita Rosentreter said the Government needed to get back on track with regulating gig work.

In late 2019, the Ministry of Business, Innovation and Employment began consultation on a suite of options to improve protections for contractors.

Since then, the process appeared to have stalled, Rosentreter said.

“It’s understandable that the pandemic has created delays … but this particular piece of work is hugely important right now as many of the workers made redundant because of Covid-19 are ending up in the gig economy,” she said.

“These types of work are not going anywhere. We need fit-for-purpose legislation now.”