The world of work is changing; it has changed, and will continue to change. Jobs have been lost; they are being lost, but many more are emerging by the day. Globalisation, the internet, digital and virtual technologies, artificial intelligence, automation, robotics, e-commerce, the digitalisation of the economy and industry and developments in information and communications technology (ICT) are daily shaping and reshaping the world of work.
Some skills are losing their relevance and essence, while some are ready-made for the mega trends that are transforming the global labour market.
Etymologists and lexicographers are having a hard time trying to seal the borders of words like work, workplace, employer, employee, and independent contractor in the context of the fluid world of work.
The meanings of those terms have been blurred by technological developments in the world of work. I grew up with the picture of a worker being one who is engaged in a long-term relationship with an employer under well-stated terms and conditions that include wages or salaries and retirement or disengagement benefits.
Indeed, Section 91 of the Labour Act defines a “worker” as any person who has entered into or works under a contract with an employer; and an “employer” is defined therein as any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, including the agent, manager or factor of that first mentioned person and personal representative of a deceased person.
Temporary arrangements like project-based, task-based or part-time jobs did not define a worker for me. The terms employer and employee or worker have gone beyond the scope and boundaries of the definitions in our statute books.
It is an understatement to say that we are living through a fundamental transformation in the way we work and relate to the workplace. The emergence of automation and “thinking machines” at the workplace is naturally concerning to those who fear that they would not only replace human tasks and jobs but may also add to the mounting unemployment problems.
Their capacity to change the skills that employers are looking for is high. These momentous changes raise policy and legal challenges.
This discussion calls for law and policy makers to respond to the pace of work-related changes and prepare for a future that may change the concepts of work and the workplace. The article is also a contribution to the necessary preparation by giving a sneak peek of the future world of work, with particular emphasis on how it might be shaped by science and technology.
One of the emerging trends in the world of work is that of gig workers. These set of workers ply their trades not as employees of employers but as floating independent contractors or freelancers. Gig workers can be online platform workers or on-call or on-demand, or temporary workers.
The backbone and driving force of this set of floating workers is e-commerce. An advantage that the gig market seems to have over the traditional labour market is the freedom and power of the gig workers to choose their jobs in the sharing market.
Digitization of the economy and related developments in ICT have created a boom for gig workers. With a smart-phone, they can stockpile their clientèle. The gig freedom gives the gig worker not only a high level of flexibility and autonomy but avails him or her with task varieties and multitasking opportunities.
Continued advances in technology will have the potential to increase gig work activity. Online technology will continue to create new forms of work with the potential to expand the gig economy. The story of the emerging gig market is not without its concerns. Regulating the relationships between the hirers and providers of gig services has not turned out to be easy for law and policy makers.
The need to integrate the gig labour market into the traditional labour legal regime is mounting by the day. Municipal authorities need to provide them with the protections available to the conventional workers and must also pin them to the applicable tax regime for the traditional workers.
They must be made to pay some taxes, even if categorised as self-employment taxes. There is also the danger of profit-oriented companies to be motivated by gig arrangements to trim down their workforce and thereby compound the growing unemployment crisis.
Uber services will be used here to illustrate the challenges of the gig business to law and policy makers. According to Wikipedia, Uber Technologies, Inc., commonly known as Uber, is an American technology company. Its services include ride-hailing, food delivery, package delivery, couriers and freight transportation. The company is based in San Francisco in the United States of America, and has operations in over 900 metropolitan areas worldwide. It is one of the largest firms in the gig economy.
On February 19, 2021, the Supreme Court of the United Kingdom, which is the final Court for appeals in civil and criminal cases from England, Wales, and Northern Ireland, decided that Uber drivers work for Uber under workers’ contracts and, so, qualify for minimum wage, paid annual leave and other workers’ rights.
The case is Uber BV and others v. Aslam and others (2021) UKSC 5. That decision should be of interest to African law and policy makers who have not responded to what – and have not answered the questions posed by what – Lord Leggatt, who delivered the sole judgment with whom the other justices agreed, termed the “(n)ew ways of working through digital platforms.”
The parties in the case are Uber BV, a Dutch company and its two subsidiaries in the UK as appellants (who lost at the Employment Appeal Tribunal and, therefore, further appealed to the Supreme Court) and Mr. Yaseen Aslam and Mr. James Farrar as respondents (who were among the claimants who won at the Employment Appeal Tribunal).
Aslam and Farrar work or used to work as private hire vehicle drivers, performing driving services booked through the Uber app. According to the Supreme Court, there were 30,000 Uber drivers operating in the London area and 40, 000 in the UK as a whole as of the time of the employment tribunal hearing in 2016.
The court described the Uber system as follows:
Prospective customers download the Uber app (for free) to their smart-phone and create an account by providing personal information including a method of payment.
They are then able to request rides. To do so, they open the Uber app on their phone and make a request. In the period considered by the employment tribunal, users did not have to enter their destination when booking a ride through the app, but they generally did so. The Uber app identifies the passenger’s location through the smart-phone’s geo-location system.
Using the same technology, the app identifies the nearest available driver who is logged into the app and informs him (via his smart-phone) of the request. At this stage, the driver is told the passenger’s first name and Uber rating and has 10 seconds in which to decide whether to accept the request. If the driver does not respond within that time, the next closest driver is located and offered the trip. Once a driver accepts, the trip is assigned to that driver and the booking confirmed to the passenger, who is sent the driver’s name and car details.
At this point, the driver and passenger are put into direct contact with each other through the Uber app, but this is done in such a way that neither has access to the other’s mobile telephone number. The purpose is to enable them to communicate with each other in relation to the pick-up, for example, to identify the passenger’s precise location or to advise of problems such as traffic delay. The passenger can also track the driver’s progress on a map on their smart-phone.
The driver is not informed of the passenger’s destination until the passenger is collected. At that point, the driver learns the destination either directly from the passenger or through the app (if the destination was entered when the ride was requested) when the driver presses ‘start trip’ on his phone. The Uber app incorporates route planning software and provides the driver with detailed directions to the destination. The driver is not bound to follow those directions but departure from the recommended route may result in a reduction in payment if the passenger complains about the route taken.
On arrival at the destination, the driver presses ‘complete trip’ on his smart-phone. The fare is then calculated automatically by the Uber app, based on time spent and distance covered.
The decision of the Supreme Court was based on the inferences it made from the nature of the relationship of Uber with the drivers. In particular, the Supreme Court had a critical look at the Uber system and the level of control that the Uber company has over the system and the driver. In the first place, the drivers do not own individual licenses to accept private hire bookings; rather, they utilise Uber’s license as workers of Uber, even if it is only on a trip-by-trip basis.
The Court considered the substantial level of autonomy and independence of the drivers in particular reference to their freedom to choose when, how much and where to work.
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The court also found that though the contractual arrangements between drivers and Uber did subsist over an extended period of time, they did not bind drivers during periods when drivers were not working: rather, they established the terms on which drivers would work for Uber on each occasion when they chose to log to the Uber app. The decision focused on the relationship between Uber and a driver at any time a driver picks up a passenger under the Uber app, and not otherwise.
The judgment also highlighted the following controls that Uber has over the Uber system:
First and of major importance, the remuneration paid to drivers for the work they do is fixed by Uber and the drivers have no say in it (other than by choosing when and how much to work). Uber also fixes the amount of its own “service fee” which it deducts from the fares paid to drivers. Uber’s control over remuneration further extends to the right to decide in its sole discretion whether to make a full or partial refund of the fare to a passenger in response to a complaint by the passenger about the service provided by the driver.
Second, the contractual terms on which drivers perform their services are dictated by Uber. Not only are drivers required to accept Uber’s standard form of the written agreement, but the terms on which they transport passengers are also imposed by Uber, and drivers have no say in them.
Third, although drivers have the freedom to choose when and where (within the area covered by their PHV licence) to work, once a driver has logged onto the Uber app, a driver’s choice about whether to accept requests for rides is constrained by Uber. The second form of control is exercised by monitoring the driver’s rate of acceptance (and cancellation) of trip requests.
Fourth, Uber exercises a significant degree of control over the way in which drivers deliver their services. The fact that drivers provide their own car means that they have more control than would most employees over the physical equipment used to perform their work. Nevertheless, Uber vets the types of car that may be used. Moreover, the technology which is integral to the service is wholly owned and controlled by Uber and is used as a means of exercising control over drivers.
A fifth significant factor is that Uber restricts communication between passenger and driver to the minimum necessary to perform the particular trip, and takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.
In the words of the Supreme Court,
Taking these factors together, it can be seen that the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Furthermore, it is designed and organised in such a way as to provide a standardised service to passengers in which drivers are perceived as substantially interchangeable and from which Uber, rather than individual drivers, obtains the benefit of customer loyalty and goodwill. From the drivers’ point of view, the same factors – in particular, the inability to offer a distinctive service or to set their own prices and Uber’s control over all aspects of their interaction with passengers – mean that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice, the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance.
The decision of the Supreme Court of the UK on Uber operations in the UK should spur critical thinking among law and policy makers on how to ensure that gig businesses such as Uber and the like are regulated as employers of labour and subject to tax regime and regulations that are applicable to private employers of labour.
There is the urgent need for law and policy makers to push the frontiers of labour and employment laws beyond the narrow and anachronistic frontiers of collective bargaining or employee collective action. The emerging trends are giving employers of labour more and wider range of options in terms of both tasks and skills, and are, at the same time, reducing the power of collective employee actions. Without a proactive legal and policy response, the worker in whatever form or status may be dangerously left at the mercy of employers of labour.
