JAMES FARRAR INTERVIEW: How has the Uber Supreme Court decision impacted the taxi and PHV industry?

James Farrar image credit: ADCU.org.uk

As the dust settles on a long legal fight over basic working rights for Uber drivers, we talk to one of the key figures who raised the debate all the way to the Supreme Court... and won.

James Farrar, General Secretary of App Drivers and Courier Union (ADCU), joins TaxiPoint to answer questions on the current landscape of the gig- economy and in particular how the Supreme Court decision has since effected the taxi and private hire industry.

Focusing on the successful Uber Supreme Court judgment, do you have any remaining concerns when it comes to workers’ rights on the Uber platform?

“Not only do I have ‘remaining concerns’ I am alarmed that the primary issues have still not been resolved yet Uber and others have embarked on PR junket to say it is all done and dusted.

“Uber has agreed to observe rights only during the working time as measured from dispatch to drop off whereas the Employment Tribunal ruled, and the Supreme Court agreed, that working time must be from log on to log off. It is cynical and illegal cherry picking from a binding ruling from the highest court in our land.

“This is hugely significant because around 40-50% of working time is stand by time waiting for Uber to allocate work. The financial implications are huge with Uber only wanting to honour minimum wage during the time drivers are revenue earning but pay you nothing at all when they are not. This is time for which drivers are entitled and need to be paid minimum wage. Right now, Uber is only agreeing to top up to minimum wage if the fare income after costs doesn’t get you across that threshold. So, the litigation carries on and we are scheduled for a 20 day hearing in 2022.

“A consequence of this refusal to respect the Supreme Court is that Uber has no proper incentive to rationalise the vast amounts of people and vehicles it brings on to the platform. Uber calls this aspect of their business formula the ‘lure of large’ numbers but it is a one-sided bargain. Uber has the competitive advantage of a fast response time due to over-supply. In return drivers suffer depressed yields and underutilisation which leads to urban congestion for everyone else.

“The other significant pain point is the issue of unfair dismissals. Uber and other app operators are dismissing huge volumes of people on a whim to impress TfL that they are somehow policing their own platforms. It is a compliance vanity project and Uber is indiscriminate in how they do this. Drivers are denied a right of appeal or any recourse in a Kafkaesque ‘deactivation’ process.

“TfL has actively encouraged Uber and others to use aggressive surveillance and automated driver enforcement techniques. In recent months we have exposed the terrible flaws in this model by securing judgments in the Dutch courts which ruled that Uber was guilty of robo-firing drivers by machine without meaningful human intervention and ordered the drivers be reinstated. As a result of those robo-firings some time ago, TfL immediately revoked the drivers’ licences. We went on to also appeal each licensing case in court and won every single licence back from TfL.

“Turning to the longer term, we can already see Uber trying to pick the legal locks and try to escape their worker rights obligations. The ADCU is a co- defendant in a case Uber has now brought before the High Court where they seek a legal declaration that their business model, which enabled mis- classification and exploitation all these years, is in fact legal under the Private Hire Vehicles (London) Act 1998. This would help Uber break any possible link between obligations to workers and their compliance obligations as a transport operator. It would also likely enable Uber to escape its expected liability of £2.5 billion in VAT which also arises as a result of the Supreme Court ruling. It is unfortunate that it has been left to us, but we have had no choice but to join this litigation because it is undoubtedly a collateral assault by Uber on the Supreme Court ruling. A win for Uber on this would be bad news for taxi and private hire drivers.”

Should other private hire operators be proactive and recognise drivers as ‘workers’? Or should they wait and be reactive to driver and union action?

“If you are asking if businesses should not obey any laws until a court orders them to do so, then the answer is no because otherwise we would have total corporate anarchy. That said, there is no doubt in my mind that the private hire industry has been built on the mouldy pillars of corporate civil disobedience. Abuse of worker rights of drivers has been de rigueur for private hire operators for decades. By behaving this way for so long, private hire operators sowed the seeds of their own destruction and set up ripe conditions for Uber to emerge. Companies like Uber thrive in conditions where regulation is weak and weakly enforced and where workers have not been effectively organised in a union like the ADCU. All ethical, fit and proper, organisations must recognise their obligation to voluntarily obey the law at the point of departure.

“The coming transition to ‘normal’ will be difficult but necessary for all private hire operators. If they cannot see the light for themselves, our union will certainly assist them in doing so – one way or another.”

Why are the worker protections needed?

“Workers must have the right to the minimum wage for every hour logged in to the platform, holiday pay, employer pension contributions, protection from unfair dismissal and freedom from discrimination. In addition they have a right to access their personal data processed by the operator at work and full transparency of algorithmic management and control. They have the right to protection from automated decision made by apps that are harmful to them. This is an increasing problem as app operator algorithms become more mature, surveillance tech proliferates, and Uber reduces its middle management staff in house. Beyond this, workers have a right to be consulted on changes to business practices that affect them and to collectively bargain for pay and reward through the union of their choice.”

Should licensing authorities be proactive and do more to ensure drivers are provided with basic rights in line with findings of the Supreme Court judgment?

“They not only should, they have an absolute legal and moral obligation to do so. No reasonable person can say that a large multinational which wilfully evades tax and illegally exploits workers is a ‘fit and proper’ person. Regulators that have become too politicised will avoid taking a stand that could lead to broader consequences of higher fares. But regulators must at least link the safety implications of a situation where average Uber drivers are working 30 hours just to break even. Frank Field MP investigated the London market at the time and found that Uber drivers were working in ‘sweatshop’ conditions. The London Assembly passed a resolution 16-1 demanding that TfL act on the Field report but TfL never acted despite the serious safety implications of ‘sweatshop’ working conditions in the licensed trade they supervise. Instead, TfL continued to stone wall our union and to this day does not effectively engage with the private hire driver community.

“Eventually in 2018 TfL issued a mealy-mouthed strategy paper promising to educate private hire operators by issuing worker rights ‘best practice guidance’. They have never delivered even on this. Outside London, the situation is depressingly similar as local authorities ape TfL. Too often we see cosy relationships and a revolving door of staff moving from local operator to the local authority licensing administration. The result for private hire drivers has been calamitous.”

What positive changes have already been seen since the Supreme Court decision?

“In the short run, we are certainly seeing some limited positive changes at Uber as they surrender to the inevitability that they must pay back from the wage theft they perpetrated on so many. Drivers are receiving settlements, albeit for lower amounts than they are entitled to, and many more are joining our claim and fighting on.

“For the rest of the industry operators, it really is squeaky bum time. Let us see who will now jump and who must yet be pushed by our union. We have already begun legal action against Bolt and we will not hesitate to target many more who will not obey the law.

“The long-term influence of the ruling is harder to see in the here and now. The finality of a Supreme Court ruling, an emphatic one at that, leaves little room to hide on the policy front. Uber initially went through the familiar stages of grief including shock, denial, anger, depression and bargaining before a partial acceptance that falls far short. Drivers too went through an epiphany of their own. After years of doubt about the value of organising in a union, suddenly drivers realise this is the only route to reform. Our union has grown exponentially to make us the second largest TPH driver representative body after the LTDA.

“The Government has failed us over all these years and there are manifest limitations in litigation, but sustained worker led organising pressure has brought Uber and the rest of the private hire industry to the brink. We are not nearly there yet but private hire industry bosses are in retreat. Their tails are up and at last we have them on the move. Now we’ve just got to keep them running!”

Do you think the taxi industry has a case for receiving workers’ rights when working on ride- hailing booking apps?

“I’ll be honest, I despair at apparent complacency about the cancerous growth of app operators in the taxi trade. There is an old business maxim: never allow someone else to disintermediate your relationship with your customer. Yet, every day more of the taxi trade is falling under the channel control of apps. There seems to have been a dangerous attitude that taxi drivers needed ‘their’ apps to compete with Uber. I see the logic to this, but it is an exceedingly dangerous game to play.

“Taxi apps will depress the tariff, take an ever- bigger commission share and will make the taxi driver subordinate. Our message to the taxi trade before it is too late is this: please learn from us, unite, fight back and negotiate taxi app access to your markets on your terms. If you don’t, soon the bargaining positions will be inverted.

“The recent cases brought by the RMT and individual taxi drivers against Gett and FREE NOW are hugely important and will shape the future relationship between taxi drivers and their apps. They are ‘must win’ cases and hopefully the taxi trade will support these cases generously and bring much more legal challenge against uncontrolled app incursion upon the right of taxi drivers to work independently.”