Uber and Ola Cabs lose fresh data rights ruling brought to Amsterdam Court by British drivers

In a fresh digital rights rulings, the Court of Appeals in Amsterdam has found in favour of workers and against Uber and Ola Cabs.

Worker Info Exchange (WIE) brought the cases in support of members of the App Drivers & Couriers Union (ADCU) in Great Britain and a driver based in Portugal.

The cases were brought under the GDPR which guarantees everyone the right to demand access to their personal data processed by any organisation and to receive meaningful information about the processing of such data. In addition, the GDPR gives everyone certain protections from automated decision making where there are significant negative consequences.

The first case involved four drivers who were found to be effectively ‘robo-fired’ by Uber without recourse. The second case involved the denial of access to personal data upon requests made to Uber by six drivers. The third case involved the denial of access to personal data upon requests made to Ola Cabs by three drivers.

Unfair automated decision making

It was alleged that the drivers faced spurious allegations of ‘fraudulent activity’ by Uber and were dismissed without appeal. When the drivers requested an explanation for how Uber systems had surveyed their work and wrongly determined they had engaged in fraud, Uber stonewalled them.

The court found that the limited human intervention in Uber’s automated decisions to dismiss workers was not ‘much more than a purely symbolic act’. The decision to dismiss the drivers was taken remotely at an Uber office in Krakow and the drivers were denied any opportunity to be heard. The court noted that Uber had failed to make “clear what the qualifications and level of knowledge of the employees in question are. There was thus insufficient evidence of actual human intervention.”

The court found that the drivers had been profiled and performance managed by Uber: - “this example illustrates, in the court's view, that it involves automated processing of personal data of drivers whereby certain personal aspects of them are evaluated on the basis of that data, with the intention of analysing or predicting their job performance, reliability and behaviour.”

As a result of the court’s findings, the court has ruled that Uber must explain how driver personal data and profiling is used in Uber’s upfront, dynamic pay and pricing system. Similarly, the court ordered Uber to transparently disclose how automated decision making and worker profiling is used to determine how work is allocated amongst a waiting workforce. Last year, a Harvard Business review ordered for dynamic pricing systems to be closely regulated due to the risk of exploitation and tacit collusion.

In ruling in favour of the drivers, the court noted that Uber’s dynamic pricing “taken as a whole, affects the drivers to a considerable extent. This system is applied to every passenger they carry. These are therefore successive decisions, each with financial consequences that determine the income they can earn.”

Ola Cabs was also ordered to disclose meaningful information about the use in automated decision making of worker earnings profiles and so called ‘fraud probability scores’ used in automated decision making for work and fares allocation.

The court also ruled that internally held profiles relating drivers and associated performance related tags must be disclosed to drivers.

The court rejected arguments by both Uber and Ola Cabs that to explain allegations and automated decision making negatively effecting workers would threaten their rights to protect trade secrets. The court ruled that such claims were entirely disproportionate relative to the negative effect of unexplained automated dismissal and disciplining of workers.

James Farrar, Director of Worker Info Exchange, said: "This ruling is a huge win for gig economy workers in Britain and right across Europe. The information asymmetry & trade secrets protections relied upon by gig economy employers to exploit workers and deny them even the most basic employment rights for fundamentals like pay, work allocation and unfair dismissals must now come to an end as a result of this ruling. Uber, Ola Cabs and all other platform employers cannot continue to get away with concealing the controlling hand of an employment relationship in clandestine algorithms.

“Too many workers have had their working lives and mental health destroyed by false claims of fraudulent activity without any opportunity to know precisely what allegations have been made let alone answer them. Instead, to save money and avoid their responsibility as employers, platforms have built unjust automated HR decision making systems with no humans in the loop. Left unchecked, such callous systems risk becoming the norm in the future world of work. I’m grateful for the moral courage of the courts expressed in this important ruling.

“The ruling comes as a bittersweet victory considering that the UK government plans to strip workers of the very protections successfully claimed in this case. Law makers must learn important lessons from this case, amend the bill and protect these vital rights before it is too late. Similarly, the Council of the European Union must not hesitate in passing the proposed Platform Work Directive as passed by the European Parliament.”

Anton Ekker of Ekker law representing in this case said: “Today’s judgments are a big win for Uber and Ola drivers and for all people working in the platform economy. Transparency about data processing on Uber and Ola's platforms is essential for drivers to do their jobs properly and to understand how Uber makes decisions about them. The practical and legal objections raised by Uber and Ola were largely rejected by the Amsterdam Court of Appeals.

“Of great importance, in addition, is the Court's finding that several automated processes on Uber and Ola's platforms qualify as automated decision-making within the meaning of Article 22 GDPR. These include assigning rides, calculating prices, rating drivers, calculating 'fraud probability scores' and deactivating drivers' accounts in response to suspicions of fraud. The judgments clearly establish that drivers are entitled to information on the underlying logic of these decisions.”

According to a statement provided to TechCrunch, an Uber spokesperson said: “We are disappointed that the court did not recognise the robust processes we have in place, including meaningful human review, when making a decision to deactivate a driver’s account due to suspected fraud. Uber maintains the position that these decisions were based on human review and not on automated decision making, which was acknowledged earlier by the previous court.

“These rulings only relate to a few specific drivers from the UK that were deactivated in the period between 2018 and 2020 in relation to very specific circumstances.”

Uber are said to be “carefully’ analysing the ruling and have not ruled out the possibility of an appeal.