New Unions, Old Laws – Why flexibility is key in the ‘gig economy’

Sebastien Flais - Independent Workers Union of Great Britain

After Uber lost an employment tribunal regarding flexibility and rights in October 2016, Jo Bertram, their UK general manager, said ‘the overwhelming majority of drivers who use the Uber app want to keep the freedom and flexibility’.  And after protests by the Independent Workers Union of Great Britain (IWGB) in Brighton for a £1 per delivery pay increase, a Deliveroo spokesperson offered the same justification and argued that their riders ‘overwhelmingly support the flexibility’ they receive.  Statements such as this ignore that flexibility is only a small part of what would actually make their workers independent contractors, which is how companies like Deliveroo take workers on in a ‘take-it-or-leave-it’ style.  If they wished companies could provide their workers with rights as well as flexibility.

There is a little-known employment category, already existing in law that gig-economy employers are intentionally ignoring – it’s called a ‘limb (b) worker’, or ‘worker’ for short.  It’s a halfway house between being employed and being completely independent and offers some rights and some flexibility.  It is under the self-employment umbrella but the status guarantees certain rights such as the minimum wage, holiday pay and protections against discrimination; the worker is decidedly not running their own business but working on behalf of another.  Falling short of employee status, worker status leaves out rights like sick pay and paid parental leave.  When app-based employers hide behind a veil of flexibility, we should be clear: this justification serves no other purpose than to quench a thirst for profit.  Indeed, the Head of Deliveroo UK & Ireland Dan Warne admitted to the Work and Pension Select Committee that his company can afford to guarantee his workers the minimum wage – they simply choose not to.

Worker status is being too readily ignored by policymakers and advisers.  Matthew Taylor, a former policy director to Tony Blair, is leading a review on modern employment practices for Theresa May.  He has suggested that a new third category of employment must be created to adapt to the changing role of technology in the workplace.  Yet this would be unnecessary, since the worker status already exists and is backed up by masses of case law – the only thing missing is a strong enforcement policy to hold companies misclassifying workers to account.  We are concerned that Taylor’s review (due to be published after the election) will come to a conclusion that plays into Deliveroo’s hands.  Their CEO Will Shu sings from the same hymn sheet when he says that Deliveroo are ‘going to have to work on the government in deciding what self-employment actually means.’

We need pro-workers organisations to hold app-based employers to account – an urgent a task that should be led by trade unions.  But faith in trade unions is declining.  Over 50 per cent of trade union members are over the age of 50 while under 25 year olds make up less than a quarter of existing union membership.  We cannot expect workers to take the benefits of trade unionism for granted – challenging your employer requires a lot of courage and employers discourage challenges to their authority.  If established unions continue to let the imagination of the young slip away, lies and exploitative practices in employment law will continue.  Or worse, expand.

To give younger workers belief, trade unions must adopt a member-led approach typified by the IWGB.  The University of London branch of the IWGB originally split from UNISON after their Senate House branch sought to undermine the campaign for University of London cleaners to earn the London Living Wage.  When IWGB campaigners to-be were on the brink of winning branch elections, UNISON declared the election null and void on the day of the results.  The democratic abuse was the final straw and the IWGB was formed.  From that day onwards, the IWGB has adopted a fluid, horizontal structure, which constantly looks to support and consult its members.

A grassroots method has allowed the IWGB to go from strength to strength.  The living wage campaign resulted in success even without the support of UNISON.  The following University of London campaign, focused on 3 Cosas (‘areas’): improved sick pay, holiday pay and pensions for the outsourced cleaners of the university.  Again, the IWGB were successful in two areas – improving sick pay and holiday pay.  In 2015, we formed our Couriers and Logistics Branch and in a year we secured pay rises for pushbike couriers in London for the three biggest same-day dispatch companies in the UK – a luxury that some couriers had not enjoyed for decades.  In all campaigns, our members spoke, we listened and together we turned those words into meaningful action.

The IWGB has continued to grow and now includes members outside of London working in foster care and Deliveroo couriers.  We are also trying to influence government policy through the Taylor review, putting forward three major proposals:

1. The creation of a government department/agency to pursue litigation against employers who are bogusly misclassifying their workforce’s employment status;

2. The extension of rights enjoyed by employees to workers such as pay for parental leave, sick pay and the right to claim unfair dismissal;

3. The removal of employment tribunal fees.

Trade unions must adopt this approach to put an end to their inertia and the employment rights confusion.  This was evident in the ‘Andrew Boxer v. Excel’ case, where we successfully argued that Andrew Boxer, a bicycle courier working for the courier firm Excel, had been forced an independent contractor status.  The judge ruled Boxer to be a ‘limb b worker’ instead; the same verdict was reached in the ‘Dewhurst v CitySprint’ case.  Andrew Boxer needs flexibility because as well as being he a courier he works as an actor – a traditional employer-employee contract is too rigid for him.  Excel would not recognise that Boxer was owed the status and rights of a worker.  They offered his contract on a take-it-or-leave-it basis and Andrew was forced to accept independent contractor status – until the IWGB got involved.  We listened to Andrew, sought worker status, and consequentially won the case.  There is no need for a new category of employment – worker status suits the real nature of gig-economy work down to the ground.

Trade unions must adopt a grassroots approach to get people joining the movement and to take on the gig economy.  A renewed member-led approach will build faith in trade unions, which is necessary in light of mass misunderstanding about employment conditions and status.  This is not a guarantor of success – the determination, dedication and motivation of the union’s elected officers is another major factor – but it is the best creator of success.  As the IWGB has shown the so called gig economy must and can be challenged by a powerful movement willing to speak for its members with a voice given by its members.

This article is part of SPERI and openDemocracy’s joint series on labour and work in the modern economy