Assailed on all sides (as is often the case with market disruptors) this commitment will go some way to addressing the negative PR that Uber and others have been facing over drivers' pay and treatment. The GMB in particular has been critical of the long hours drivers work, with some drivers suggesting low pay is the motivating factor behind this.
More importantly, the move appears to be specifically designed to help demonstrate – in advance of its appeal hearing – that Uber is a fit and proper operator and should therefore be licensed to operate in London. This comes after the firm was banned by Transport for London back in September 2017.
However, the requirement imposed by Uber that drivers must stop work for six hours after spending 10 hours on the road, could also be taken into consideration as part of its appeal over the employment status of its people. Uber is appealing against the finding back in November 2017 that its drivers were workers entitled to rights such as holiday pay and the minimum wage, rather than genuinely self-employed.
My feeling is that unless Uber makes other drastic changes to its operating model that swing the overall relationship back towards what the courts judge to be self-employment, this move is tantamount to running up the white flag in the employment status battle.
Put simply: placing a cap on the number of hours its drivers can operate and what does and does not count as work (the suggestion being that Uber deems waiting time between jobs will not count towards the 10 hours, which itself is of interest as the tribunal and the EAT ruled that drivers were still ‘workers’ while waiting), before they must take a break inevitably bolsters the degree of ‘control’ Uber is exercising over the individuals it engages with.
As the degree of control exercised by an engager is one of the specific factors a court or tribunal looks at when assessing employment or worker status – and specifically did in the Uber case – this is significant. Uber is already facing an uphill battle in showing that its drivers are self-employed due to the judge’s criticisms of its operating model and specifically the degree of control it already exerts over things such as the route taken and method of operating, so this becomes all the more revealing.
Given the obvious business savvy of those running the business and undoubted intellect of its advisors, we must assume Uber made this decision with its eyes fully open and is well aware of the potential ramifications on the other stream of litigation. As a result, unless other changes to compensate for this or otherwise fundamentally change the operating model are made, I wonder if Uber has ultimately judged this to be the lesser of two evils.
How you engage with drivers becomes irrelevant if they are not licensed to drive at all in London. With the London market being worth an estimated 3.5 million users, Uber’s decision suddenly appears much more logical. In effect, Uber is pulling the duvet up to keep its head warm and accepting this may mean its feet go cold.
Leon Deakin is head of employment at Coffin Mew
