Adapting Employment Law to the Gig Economy

In the wake of the gig economy, where the labour market is comprised more of some short-term contracts or freelance jobs as opposed to conventional permanent long-term jobs, the question of whether or not one is an employee comes into question—determining whether one is an employee or an independent contractor becomes utterly necessary. The question becomes even broader when the type of job in question involves online digital platforms and different customers. This issue was discussed at length in the Uber BV v Aslam case, Uber drivers claimed that, as workers or employees of Uber, they deserved to be paid a minimum wage and to be accorded annual leave as per the regulations. On the other hand, Uber BV claimed that the drivers were self-employed independent contractors and were only employees during the trips. The court, in its determination, thought that the relationship between Uber and the drivers was that of an employer-employee and that the company was not an agent of the drivers, which then gave the drivers the status of workers according to all the workers’ rights under the Employment Act and other regulations.

The Taylor review report recommended that the government should introduce another term to refer to employees who are independent contractors but with worker rights, the term which should be dependent contractors. It was based on the idea that the conventional three-tier classification, namely, employer, employee, and independent contractor, It was rather confusing, and although it remained relevant in classifying people in the job market, there was a need for another definition for this other group of people who, despite having worker rights, did not qualify to be employees.

From the approach taken by the court in the Uber case and from the recommendation of the Taylor report, it is definite that a fourth limb of classification is due and that the government should introduce it in their legislation to refer to people who are independent contractors but deserving of the employee rights or workers’ rights. I therefore agree that statutory UK employment law requires updating to keep up with the rise of the ‘gig’ economy. My argument is double-faceted.

Firstly, the two materials, the Uber case and the Taylor report highlight the growing nature of the labour market, introducing new categories of highly hybrid jobs, lying between traditional employees and independent contractors. The danger that this growth poses is that the people in this category of jobs will most likely suffer the inadequacies of either of the two regimes because they do not exactly fit in either of them. In Osborne’s predictive analysis of the labour market, he foresaw the susceptibility of various jobs to automation, highlighting the growing prevalence of non-standard work arrangements such as gigs and pointing out that this class of people would suffer the lack of protection of the current regimes. Derin and Prassl also emphasize in their literature that the era of digitalization would pose the threat of automation in the job market, creating a hybrid class of employment that would most likely cause serious jurisprudential massacre if not handled.

The danger these two scholars foresaw is evident in the corridors of justice, with the prevailing different jurisprudential pronouncements, where similar cases have been handled differently due to the various interpretations of the current laws. Independent Workers Union of Great Britain v RooFoods Ltd t/a Deliveroo, the Central Arbitration Committee (CAC) had held that Deliveroo riders were self-employees and not employees of the company and, therefore, did not have the right to collective bargaining. This contrasts greatly with the Uber BV case, which seemed to indicate otherwise, yet the facts of the case were almost similar.

Secondly, comparative jurisprudence makes the same observations of varying legal frameworks. The European Commission Study on Working Conditions in the Online Platform Economy explores the working conditions in the online platform economy. It has highlighted various variations across the countries, amongst them the UK, illustrating the challenges facing the developing gig market.

Most of the employment laws in the UK have existed since the 1990s, which reckons that they have been rendered irrelevant over time, with the changing labour dynamics and globalization happening across the globe. International relations and trade have also contributed to the growth of the gig market since most jobs are carried remotely across the globe. With the updating of employment laws, international relations and international trade will be greatly protected.

As evidenced in the discussion above, there is a reason for the statutory UK employment law to be updated to keep up with the rise of the gig economy for several reasons. First, avoid legal ambiguity, as explained by the difference in decided cases on the same facts. Secondly, it is to fit into the changing market labour dynamics. It is important to acknowledge that the labour market will continue to develop towards digital and online platforms, which will cause more dilemmas related to the Uber case and many others.

In conclusion, the case of Uber BV and Others v Aslam and Others suggests the need to review UK employment legislation to keep pace with the developments and challenges associated with the emergence of the gig economy. The proposed modification of Taylor’s report reinforces this fact. The articles underline the essentiality of the employment principles reform to reach a compromise between flexibility and protection, to consider technological innovations, and to develop constructive innovations and equal opportunities in the labour market.

Bibliography

LEGISLATIONS

1. Employment Act, 1996

ARTICLES

1. Aloisi, Antonio, and Valerio De Stefano. “Regulation and the future of work: The employment relationship as an innovation facilitator.” International Labor Review 159.1 (2020): 47-69.
2. Atmore, Emily C. “Killing the goose that laid the golden egg: Outdated employment laws are destroying the gig economy.” Minn. L. Rev. 102 (2017): 887.
3. Bertolini, A., & Dukes, R. (2021). Trade unions and platform workers in the UK: Worker representation in the shadow of the law. Industrial Law Journal, 50(4), 662-688.
4. Frey, Carl Benedikt, and Michael A. Osborne. “The future of employment: How susceptible are jobs to computerization?” Technological forecasting and social change 114 (2017): 254-280.
5. Garben, Sacha. “The regulatory challenge of occupational safety and health in the online platform economy.” International Social Security Review 72.3 (2019): 95-112.
6. Todolí-Signes, Adrián. “The end of the subordinate worker? The on-demand economy, the gig economy, and the need for protection for crowdworkers.” International Journal of Comparative Labour Law and Industrial Relations 33.2 (2017).

CASE LAW

1. Uber BV and Others v Aslam and Others [2021] UKSC 5