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Uber loses appeal in UK employment rights case Watch

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    (Original post by ByEeek)
    Well so is the idea of employing people but not paying them minimum wage or giving the sick or holiday pay. They are the basics we have grown to expect in this country and if you work for a company for more than a certain amount of time, you should expect those basic things.
    This - and they should be the basics in all countries.

    Part of the Uber story is that they don't just seem to be about growing a massive company very rapidly on the backs of cheap labour, but that appears to be an ideological reason that motivates their bosses. The now disgraced Kavalnick, who started it, has made no secret of his loathing for labour laws and indeed any control city authorities attempt to extend over their localities. To the Uber (and other Big Digital) management, rules are things that get in the way of their rightful Libertarian extremist domination of the planet.

    Uber are also deeply in bed with Goldman Sachs globally and the latter shares that ideology and is clearly intent on lowering planetary wages to increase speculative and unearned profits.
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    (Original post by Fullofsurprises)
    This - and they should be the basics in all countries.

    Part of the Uber story is that they don't just seem to be about growing a massive company very rapidly on the backs of cheap labour, but that appears to be an ideological reason that motivates their bosses. The now disgraced Kavalnick, who started it, has made no secret of his loathing for labour laws and indeed any control city authorities attempt to extend over their localities. To the Uber (and other Big Digital) management, rules are things that get in the way of their rightful Libertarian extremist domination of the planet.

    Uber are also deeply in bed with Goldman Sachs globally and the latter shares that ideology and is clearly intent on lowering planetary wages to increase speculative and unearned profits.
    But of course it isn't libertarian for anyone other than the owners of Uber.

    Their business model is very controlling of their drivers. A commentator said yesterday that Uber could very easily change its business model to be compliant with the ruling. Yes it could, but it doesn't want to be the taxi dispatcher hired by 40,000 small businessmen in London.
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    If a company sets the charges and there are thousands of people working for them it seems to me to be an employer.
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    (Original post by The Financier)
    Not necessarily. This case is separate from their TfL license appeal and refers to a different aspect - the classification of workers rather than public safety and security. In that regard, it may damage their chances of getting the TfL license back but it isn't a direct link.

    Furthermore, they still have multiple avenues of appeal so it's extremely unlikely that this is the last we've heard of this. So long as they continue to have a case in the courts, they'll continue with the status quo when it comes to how they classify workers.
    Now this has been lost at the first appeal it is going to play a part on the licensing decision. Part of the "fit and proper" test is financial stability. The London Uber operation is through a dedicated subsidiary. I think TfL will now be saying that to be fit and proper there will need to be a parent company guarantee for the enormous contingent liabilities that the London Uber business will be building up to pay the national minimum wage and holiday pay and also the penalties to HMRC for not doing so.
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    (Original post by KingHarold)
    If a company sets the charges and there are thousands of people working for them it seems to me to be an employer.
    That's not really the case with minicab operators. The private hire business has always involved licensed operators who register their pricing model with the local authority and owner drivers who, as self employed business people drive the cars to that pricing model.

    The issue is the level of control Uber has over the owner drivers. In a traditional minicab operation, the owner driver can substitute any licensed driver and many owner drivers who drive during the day have an employed "night driver" or vice versa. Uber doesn't permit this.

    Likewise, traditional minicab drivers generally secure to themselves regular bookings and long distance return trips. Uber doesn't allow its drivers to give out their phone numbers so that they can directly secure further bookings.

    There are lots of other ways in which the freedom of the driver "to conduct business" is curtailed.
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    (Original post by nulli tertius)
    But of course it isn't libertarian for anyone other than the owners of Uber.

    Their business model is very controlling of their drivers. A commentator said yesterday that Uber could very easily change its business model to be compliant with the ruling. Yes it could, but it doesn't want to be the taxi dispatcher hired by 40,000 small businessmen in London.
    Ayn Rand has some odd descendants. Her followers in San Jose are in the authoritarian capitalist branch of the libertarian happy (but slightly peculiar) family. :teehee:
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    (Original post by nulli tertius)
    Now this has been lost at the first appeal it is going to play a part on the licensing decision. Part of the "fit and proper" test is financial stability. The London Uber operation is through a dedicated subsidiary. I think TfL will now be saying that to be fit and proper there will need to be a parent company guarantee for the enormous contingent liabilities that the London Uber business will be building up to pay the national minimum wage and holiday pay and also the penalties to HMRC for not doing so.
    I wonder of the HMRC will demand back-payment to the Uber start date for Employer's NI contributions now? They should - and that would be a massive amount.
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    (Original post by ByEeek)
    Austin Texas banned Uber. Within a week, the competition had moved in. It is no bad thing. Anyway - what is wrong with talking / bus / tube? Students have it too good these days.

    As for this ruling - it is a good thing. It means that our employment laws can not be circumvented. I am sure most people would agree that the tax dodging practices by most big companies are not right. Well so is the idea of employing people but not paying them minimum wage or giving the sick or holiday pay. They are the basics we have grown to expect in this country and if you work for a company for more than a certain amount of time, you should expect those basic things.
    This isn't an issue of a big business malpractice - it's one of increasing political interference by the EAT. The legal rationale for this is to say the lease, controversial.

    It dates back to Stringfellows v Quashie in 2012, where this whole issue of who is or is not self-employed was changed to the point that it becomes really rather difficult to find anyone who is actually self-employed. The Uber case took this a coulple of parsecs further in the sense that it is on the face of it, absurd.

    Uber drivers are in every single sense of the traditional meaning - self-employed. They work their own hours, agree to take clients or not and make their own tax arrangements. The only slight issue is that they are constrained by the Uber pricing structure - but this is far more flexible self-employment than say an electrician or carpenter who is working as a sub contractor.

    Essentially, Uber drivers work as much or as little as they please, and can take fares or not. If they're not self-employed, who is? How exactly their entitlement to worker status and holiday pay and the minimum wage is frankly bizarre.

    The whole thing has also been hijacked by fanciful race agendas. A lot of people with no skills or qualifications work as uber drivers and make a good living - they wouldn't do it otherwise. The idea that this is somehow victimising immigrants boggles the mind.
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    (Original post by Trinculo)
    The only slight issue is that they are constrained by the Uber pricing structure - but this is far more flexible self-employment than say an electrician or carpenter who is working as a sub contractor.
    And this is the issue. I have done contracting. But it is me that has negotiated the terms. Uber drivers have no say in the terms of their self employment. They are entirely at the whim of Uber. Uber could decide to cut the charges their drivers can charge and there is nothing the drivers can do about it. And of course, Uber take a slice at every turn.

    By contrast, minicab drivers pay a licensing fee to the council, work on a standardised and agreed fee structure and then everything else is up to them. After costs, everything they take is their own money. There is no middle man taking a slice of every journey or dictating how much profit each journey is worth.

    I understand the business model of creating a market place that puts sellers and buyers together, but in any marketplace, where as it is reasonable for the market place provider to ask for a fee, it is not acceptable for them to set the terms of the interactions between buyer and seller. An equivalent example would be a shopping centre dictating the price Next sell their clothes for and then taking a slice of every sale.
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    (Original post by Fullofsurprises)
    I wonder of the HMRC will demand back-payment to the Uber start date for Employer's NI contributions now? They should - and that would be a massive amount.
    They are workers but probably not employees (they are buying and running the "plant" at their own costs and risk), so no NI and failure to operate PAYE issues.

    However HMRC are the enforcing authority for the Working Time Directive (holiday pay but not working hours which is enfored by HSE) and National Minimum Wage.

    The penalties are up to 200% of the arrears (discounted by half if paid within 14 days of imposition) capped at £20,000 per worker.

    A payroll error such as Debenham's cost it probably a 100% penalty (they would have been stupid not to pay up within 14 days-hence the 50% penalty actually recovered)

    http://www2.cipd.co.uk/pm/peoplemana...of-shame.aspx#

    Argos got a 200% penalty (again discounted for early settlement) for not paying staff to attend pre-shift briefings and post-shift security searches.
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    (Original post by Trinculo)

    Uber drivers are in every single sense of the traditional meaning - self-employed. They work their own hours, agree to take clients or not and make their own tax arrangements. The only slight issue is that they are constrained by the Uber pricing structure - but this is far more flexible self-employment than say an electrician or carpenter who is working as a sub contractor.
    Read the decision. It isn't the pricing structure that is at issue.

    If I hire a builder and he sends a sub-contract chippie to do the joinery and I know that I have a joinery only job coming up, I can (and have) asked the chippie for his number and hired him directly.

    Uber doesn't allow that. So lets say I hire a Uber driver to take me to say Manchester Airport. He is good, polite and reliable. It is a valuable job. I would rather hire him than take my chances for the return trip. The Uber driver would rather take my job then take pot luck hanging around London. He is a licensed driver in his own licensed car. He breaches his agreement with Uber if he gives me his phone number at my request.
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    (Original post by ByEeek)
    And this is the issue. I have done contracting. But it is me that has negotiated the terms. Uber drivers have no say in the terms of their self employment. They are entirely at the whim of Uber. Uber could decide to cut the charges their drivers can charge and there is nothing the drivers can do about it. And of course, Uber take a slice at every turn.

    By contrast, minicab drivers pay a licensing fee to the council, work on a standardised and agreed fee structure and then everything else is up to them. After costs, everything they take is their own money. There is no middle man taking a slice of every journey or dictating how much profit each journey is worth.

    I understand the business model of creating a market place that puts sellers and buyers together, but in any marketplace, where as it is reasonable for the market place provider to ask for a fee, it is not acceptable for them to set the terms of the interactions between buyer and seller. An equivalent example would be a shopping centre dictating the price Next sell their clothes for and then taking a slice of every sale.
    Having control over pricing is not part of the definition of a worker, though. The most important aspect is that of mutuality - and whether or not the driver is obliged to do all work that Uber gives him. We know the answer to that is no. The drivers can pick and choose.

    As for the pay structure, it's rather odd to make Uber some kind of bugbear in this respect - there are numerous examples of people who are obviously self-employed who have little or no control over their pay rates. The most obvious is Black Cab drivers - no one in their right mind thinks they are not self-employed - yet they don't set their own rates - they are meter controlled and set (presumably by TfL).

    Self employed people work at rates fixed by the people contracting them all the time. The question isn't over whether you like Uber, or whether you think they have moral fibre - it's over whether or not their drivers are self employed.
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    (Original post by Trinculo)
    there are numerous examples of people who are obviously self-employed who have little or no control over their pay rates. The most obvious is Black Cab drivers - no one in their right mind thinks they are not self-employed - yet they don't set their own rates - they are meter controlled and set (presumably by TfL).
    I don't think you can compare black cabs. They have a pricing structure that is set by their governing body or local authority. Each and every fare they take goes into their pocket. There is no middle man taking a cut and there is no entity that could suddenly lower the amount of money they get. It is a model that has worked very well for many many years. I don't have a huge issue with Uber, but as a company I think they have a lot to answer for ethically in the way they practice.

    The risk of going down the Uber route is that all manner of regular jobs start to become self employed contract jobs. In turn, companies effectively get a back door to opting out of their responsibilities as employers. In they eyes of the law a contractor is someone who can choose their work and can subcontract out their labour to a third party. Could that be said of an Uber driver? I know it is the case of black cab drivers that often share their cab with a partner.
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    (Original post by ByEeek)
    I don't think you can compare black cabs. They have a pricing structure that is set by their governing body or local authority. Each and every fare they take goes into their pocket. There is no middle man taking a cut and there is no entity that could suddenly lower the amount of money they get. It is a model that has worked very well for many many years. I don't have a huge issue with Uber, but as a company I think they have a lot to answer for ethically in the way they practice.

    The risk of going down the Uber route is that all manner of regular jobs start to become self employed contract jobs. In turn, companies effectively get a back door to opting out of their responsibilities as employers. In they eyes of the law a contractor is someone who can choose their work and can subcontract out their labour to a third party. Could that be said of an Uber driver? I know it is the case of black cab drivers that often share their cab with a partner.
    I think it's the other way around. I personally don't believe anybody thought that Uber drivers were employed until one of them (almost certainly prompted by a firm of employment solicitors) decided to challenge it.

    I don't see how it's a question of more jobs going "down the Uber route" in terms of going from employment to self-employment, but rather from obvious self-employment to constructed employment.

    There's also this strange notion that Uber is somehow the bad guy in all this. Prior to Uber, many of these people weren't drivers - and those that were opted to become Uber drivers because the terms were better than those they had at minicab firms. Those that weren't drivers chose to become drivers rather than whatever other jobs they had - or as well as. It's exactly the flexibility and choice that makes Uber drivers obviously not employees that they like about it. These are worker-led zero hours contracts. The elephant in the room is that the workers want it. They don't want to be employees on minimum wage being told when and where to work and how long for.
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    (Original post by Trinculo)
    I think it's the other way around. I personally don't believe anybody thought that Uber drivers were employed until one of them (almost certainly prompted by a firm of employment solicitors) decided to challenge it.

    I don't see how it's a question of more jobs going "down the Uber route" in terms of going from employment to self-employment, but rather from obvious self-employment to constructed employment.

    There's also this strange notion that Uber is somehow the bad guy in all this. Prior to Uber, many of these people weren't drivers - and those that were opted to become Uber drivers because the terms were better than those they had at minicab firms. Those that weren't drivers chose to become drivers rather than whatever other jobs they had - or as well as. It's exactly the flexibility and choice that makes Uber drivers obviously not employees that they like about it. These are worker-led zero hours contracts. The elephant in the room is that the workers want it. They don't want to be employees on minimum wage being told when and where to work and how long for.
    The law does not work around what lay people think their legal rights are, surprisingly.
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    (Original post by Notorious_B.I.G.)
    The law does not work around what lay people think their legal rights are, surprisingly.
    It's simple - no one thinks that Uber drivers aren't self-employed. It's just that some people see a some kind of social justice angle and want to jump on it.
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    (Original post by Trinculo)
    It's simple - no one thinks that Uber drivers aren't self-employed. It's just that some people see a some kind of social justice angle and want to jump on it.
    I don't think the Tribunal give two shits what commenters on TSR or The Guardian website think of Uber, to be fair. I think it based its decision on the law. And the law is fairly simple: if a company has a high degree of control over its operatives, those operatives are employees. The employer can call them whatever it likes; they can think of themselves as whatever they like. But if the company exercises a high degree of control, its employees can enforce their employment rights in a court of law.

    In other news, water is wet and Oscar Pistorius has one leg.
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    (Original post by Notorious_B.I.G.)
    I don't think the Tribunal give two shits what commenters on TSR or The Guardian website think of Uber, to be fair. I think it based its decision on the law. And the law is fairly simple: if a company has a high degree of control over its operatives, those operatives are employees. The employer can call them whatever it likes; they can think of themselves as whatever they like. But if the company exercises a high degree of control, its employees can enforce their employment rights in a court of law.

    In other news, water is wet and Oscar Pistorius has one leg.
    They can work when they like, refuse work if they like, drive their own car if they like and work other jobs / organise their own tax affairs. How exactly is this exercising a high degree of control? By this measure, how are Black Cab drivers not also employees? Exactly who could ever be considered to be self-employed?
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    (Original post by Trinculo)
    They can work when they like, refuse work if they like, drive their own car if they like and work other jobs / organise their own tax affairs. How exactly is this exercising a high degree of control? By this measure, how are Black Cab drivers not also employees? Exactly who could ever be considered to be self-employed?
    Thankfully, the very clever person who wrote the decision addresses this point. Uber's practices are distinguished from the mandatory legal regime, i.e. that which necessarily applies to black cab operators as a minimum standard, for the reasons as follows:

    "113. [...] Although ULL, as holder of the relevant PHV operator licence, was required to hold copies of documentation relating to PHV drivers and their vehicles, there was no regulatory requirement for it to carry out the interview and induction process (“onboarding”) it chose to operate. While it was required to obtain and record passenger details, there was no regulation stopping ULL passing these on to the drivers, still less for it to stop drivers providing their contact details to passengers. Uber says these are matters of common sense, arising due to security concerns or for obvious commercial reasons (the concern about solicitation). That might be true but I cannot see that these factors - controls introduced by ULL at its choice - were thereby rendered any the less relevant. Similarly, although ULL - as the PHV operator licence holder - was required to operate a complaints procedure, it was not obliged to resolve those complaints without recourse to the drivers; again that was its choice. Yet further, there was no regulatory requirement for the guaranteed earnings scheme that had previously been in operation for new drivers, nor any obligation to indemnify drivers against fraud, nor to meet cleaning costs. And there was nothing in the regulatory regime that obliged ULL to warn drivers they should accept at least 80% of trip requests to retain their account status (as to which, see further below), to operate a ratings system (deactivating the accounts of those unable to improve poor scores), to log drivers off if they decline three trips in a row or to provide a suggested route for each trip."

    Would you believe it, no mention of TSR or Guardian commenters anywhere.
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    (Original post by Trinculo)
    It's simple - no one thinks that Uber drivers aren't self-employed. It's just that some people see a some kind of social justice angle and want to jump on it.
    There's a big 'Uber' sign on their cars. Their pricing is set by Uber. Uber take a sizeable portion of each fare.

    The idea that Uber drivers are self-employed and not working for Uber is, to say the least, bizarre.
 
 
 
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