Uber drivers considered 'workers'
Published: Mar 23, 2021
By Prashanth Shivadass & Pooja Rao*
1. Uber v. Aslam
In a landmark decision delivered on February 19, 2021, the Supreme Court of the United Kingdom held that Uber drivers are "workers" and must be granted the basic rights that are available to workers under the UK Employment Rights Act, 1996 ("UK Act"). In doing so, the Supreme Court dismissed the contentions of Uber that it's drivers were self-employed partners and consequently not entitled to the same rights as workers.
1.1. The decision of the Employment Tribunal
The case was first brought against Uber before the UK Employment Appeal Tribunal on the ground that Uber drivers worked for Uber and had to follow the guidelines laid down by the company. On the other hand, Uber contended that their app was a mere facilitation of a driver's self-employed work, which meant that Uber was not liable to fulfil any obligations under any labour law.
Subsequently, the Tribunal held that Uber drivers were "workers" whenever they:
i) had the Uber app open;
ii) were within the territory wherein they were permitted to work, and;
iii) were capable of and willing to accept rides
Thus, Uber drivers are entitled to receive the benefits of workers under the UK Act.
1.2. The decision of the UK Supreme Court
Uber appealed against the Employment Tribunal's decision, claiming that their drivers were free to fix their own timings and not liable to follow a fixed schedule, which subsequently meant that they could work as much or as little as possible.
The Supreme Court upheld the decision of the Employment Tribunal, thereby granting Uber drivers multiple benefits such as minimum wage and minimum working hours. The Court's ratio decidendi was three-fold:
i) the terms of payment i.e., the fare of a ride is fixed by Uber and not the drivers;
ii) the terms of the contract between Uber and the drivers were fixed by Uber and are non-negotiable;
iii) Uber had the ultimate control over the service provided to its customers
In addition, the Court pointed out how Ubermade camera surveillance mandatory, fined drivers for cancelling rides,did not disclose apassenger's destination to the driver beforehand and reduced communication between the driver and the customer to a "stark minimum". Given their lack of independence and massive power of Uber over their work, it was decided that they were not self-employed. The Court thus held that they were workers.
2. A comparative analysis of UK laws and Indian laws
A deep comparative analysis of both nations' laws indicates that while the laws of the UK are in no manner insufficient or inept, the labour laws of India are more detailed and widespread. The same could be attributed to their four-fold comprehensive nature. Moreover, given that they were passed as recently as 2020 and that the UK legislation was passed way back in 1996, the Indian legislature has been able to adopt modern practices. However, what makes the British law more effective at the executive level is the longevity of the labour laws along with a sharper implementation of the limited laws that are present. Moreover, India's Labour Codes law are new and will naturally take time to be executed efficiently.
2.1. The relevant legislations
The UK Employment Rights Act, 1996 is the key regulation that deals with all aspects of employee rights, be it monetary, medical, or social. It also instils civil and criminal liability in employers who fail to conform with the standards prescribed by the Act.
Up until 2019, India has 29 different labour laws. While the vast nature of the laws was useful in terms of depth, they would often create confusion regarding which law would be applicable in what instance. This gave way to a need to simplify and consolidate India's labour laws, especially to maintain transparency and uniformity. Thus, 4 different codes were passed between 2019 and 2020. While the new codes are in no manner flawless, their implementation is a large step in terms of reforming and consolidating of labour laws, since the old laws resulted in extensive ambiguity and misinterpretation. Hopefully, the establishment of these 4 Codes will help in reducing litigation and preserving the welfare of workers all over the country.
2.2. "Workers" as per the law
Under the new Indian labour laws, a "worker" is defined by the Industrial Relations Code, 2020 as " any person employed in any industry to do any form of manual, unskilled, skilled, technical, operational, clerical, or supervisory work for hire or reward "1. The definition is specific when compared to that in the UK Act and thus leaves less room for unambiguity. However, there still exists much ambiguity with respect to who can be classified as 'workers' in so far as platforms such Uber is concerned.
The UK Act, on the other hand, defines a "worker" as an individual who "has entered or works under a contract of employment any other express or implied contract"2. The UK Act provides multiple benefits including but not limited to the right to paid leave for public duties and responsibilities, the right to compensation if a job becomes obsolete 3 and the right to receive payment on employer's bankruptcy or lack of funds 4 in so far as workers are concerned. Thus, if an Uber driver has a public obligation to fulfil such as jury duty or voting, they will no longer have to either skip out on such responsibilities or remain unpaid. Moreover, if Uber ever becomes irrelevant or bankrupt due to a change in the cab market or private transportation system, drivers shall still be entitled to pay even when there is an extreme shortage of funds or customers.
In addition to monetary benefits, the UK Act provides health benefits to workers. The Act puts an onus on the employer to meet certain safety standards in the workspace to protect workers and employees. The Act further lays down certain grounds 5 on which an employee should not be subjected to a disadvantage by any acts or failure to act by their employer. Any worker who claims to have incurred damages or affected negatively contrary to the Act can be awarded a compensation after taking their complaint before the Employment Tribunal. Uber drivers are now entitled to all the above benefits. Uber now has a certain safety standard to uphold for all its drivers, and on failing to meet them can be sued in a Court of law, especially since Uber drivers can now approach the Employment Tribunal more freely as workers.
3. Application of the decision in India
3.1. As per recent Uber regulations
In November 2019, the Central Government proposed new rules to regulate cab-based apps wherein Uber could charge a maximum 20% commission per ride from driver partners. The regulations also would implement a limit of 12 working hours per day for drivers. Moreover, it mandates drivers to be provided with insurance.
3.2. Are Uber drivers' "workers" under Indian law?
Under Indian law, an Uber driver would be considered a gig worker 6 i.e., "a person who performs work or participates in a work arrangement and earns from such activities outside of traditional employer-employee relationship". However, the UK Supreme Court stated that when considering whether Uber drivers fall under the ambit of the UK Act, it is pertinent to understand the purpose behind the legislation, which is to protect susceptible employees and workers against exploitation by giving them workplace rights. If this logic is applied to the Indian Codes, the same conclusion can be drawn i.e., the Codes were implemented to protect workers from physical and financial harm. Thus, Uber drivers may be considered 'workers' may be granted the same rights that the Uber drivers in the UK have been given by virtue of the decision.
4. Conclusion
There is no doubt that Uber v. Aslam is of great relevance in India, given that Uber is the most popular cab company in India and even has a stronger consumer base in India than in the UK.
When Uber was first established, it was a great way for people all over the world to make money through providing driving services. Over the years, however, the popularity of Uber has increased rapidly along with the stringent hold the company has over its "workers". Gone were the days of good pay and self-made hours, replaced with long hours and mass exploitation. While many of the strict measures laid down by Uber are crucial to ensure that it still attracts customers and protects their safety, the health, safety 7 and economic well being of drivers are also significant and cannot be brushed aside by the law. It is thus of grave importance to establish this finding in the Indian context as well.
(The authors are Founder and Associate respectively with Shivadass & Shivadass (Law Chambers). The Authors would like to acknowledge the contributions of Ms. Ishani Chakrabarty, a 3 rd year law student from Symbiosis Law School, Pune. The views expressed are strictly personal.)
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1. Uber BV v. Aslam , [2018] EWCA Civ 2748.
2. Section 2(zr), The Industrial Relations Code, 2020.
3. Section 230(3), The Employment Rights Act, 1996.
4. Section 135 , The Employment Rights Act, 1996.
5. Section 182 , The Employment Rights Act, 1996.
6. Section 44 , The Employment Rights Act, 1996.
7. Section 2(35), The Code on Social Security, 2020.
(The authors are Founder and Associate respectively with Shivadass & Shivadass (Law Chambers). The Authors would like to acknowledge the contributions of Ms. Ishani Chakrabarty, a 3rd year law student from Symbiosis Law School, Pune. The views expressed are strictly personal.)
