The law has to adapt to the Uber/Deliveroo age

If working is going to be more flexible, employment law will have to follow suit

The recent exercise by Deliveroo in promulgating Newspeak, perhaps better known as its attempt to tie itself up in semantic knots by avoiding any talk of its workers as actually being workers, unsurprisingly exposed the delivery firm to scorn and ridicule.

Yet as the world adapts to the advent of the automated age, and the effects of the accompanying digital revolution, industrial relations may be well set to evolve along similar lines, where flexibility on both sides is a prized characteristic of industrial relations. If that’s so, then the law needs to evolve its approach and become just as flexible.

Back in 2014, PriceWaterhouseCoopers released its Three Worlds model of what employment might look like come 2022. Sprinkled in between the corporate dystopia of the Blue World, where people are effectively joined at the hip to the company they work at from birth to death, and the highly regulated Green World, in which a social backlash against corporations has led to a global imposition of potentially onerous if well-intended regulations, the Orange World seems to be a more realistic bet.

In the Orange World, specialised workers maximise their opportunities through digital self-marketing, at the cost of job security. People tend to develop their career through multiple jobs, often of a short-term nature, with most companies being smaller and more flexible, and taking on, or letting go, of employees as circumstances require. This is a world where so called portfolio careers are the norm, with people working multiple jobs in order to pursue their ambitions, or just to make ends meet.

The Orange World tends to be more of the former, or least that’s the optimistic gloss put on it by PriceWaterhouseCoopers. It foresees a world in which the likes of Uber and Deliveroo go from being easily castigated pariahs to the standard template for a typical firm.


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Not that all the power will end up in the hands of the big corporations. As workers become more self-employed contractors, and each person becomes more experienced and adept in marketing themselves, their bargaining power increases. This allows them to negotiate more bespoke contracts, which leads to a greater work-life balance.

What kind of a world that will lead to is still a matter of debate, with plenty of literature on the subject to be found spread across the internet, but the challenge for the law seems clear: knowing when to get involved and when to step back.

Take an area that has already caused major contention: worker benefits. If most people work for companies on a very short term basis, or else only for a small amount of the week, then where should the law draw the line in terms of benefits? If I do 15 hours for firm A, and 15 hours for firm B, then do both of them need to give me statutory sick pay, or mandatory holidays, especially if I work from home on a regular basis?

By the same token, if people can expect less benefits from individual employers, then does the state step in with some kind of expanded national insurance scheme that doesn’t just pay for social security and the NHS but covers everything from payments for when you’re sick or suddenly redundant to pensions? These will be questions for the law, and lawyers will need to consider how to make their own approach just as flexible as the workplace they are attempting to regulate.

Another similar area would be how to best help people protect their reputations.

Look at a lot of the literature on portfolio careers and one of the key attractions stressed by proponents, besides being able to take the afternoon off, is that people are paid based upon the quality of their work and not simply because they’re in the office for eight hours a day five days a week.

PriceWaterhouseCoopers talks of such work being measured by a ratings system, like the one used by buyers to rate sellers on eBay, or by Uber drivers and customers to rate each other. Such things have already been highly discussed, yet look around the internet and you’ll find no shortage of people readily confessing to deliberately giving contractors and customers poor ratings out of spite or annoyance rather than based on a genuine reflection of their work or attitude. In such circumstances, slander and even defamation are words you’re more likely to hear in a world where people work for multiple employers at any one time and market themselves as their own unique brand. At what point does the law step in and decide that a moment’s irritation and lack of thought has become a deliberate attempt to undercut another person’s business by besmirching their character?

The law will also need to become much more accessible, and able to quickly meet the needs of those using it. So law graduates may well be more inclined to set up their own law firms, specialising in niche areas and catering to very select markets. Whether or not such firms — which might be very small, consisting of maybe only two or three lawyers and being based well outside cities and towns — come to be the norm and a true threat to the bigger players remains to be seen.

All of these issues, and more, will need to be considered, and now rather than when they crop up later. Neither the law nor its practitioners can simply afford the luxury of plunging blindly into this changing, more flexible world and hoping for the best outcome. The law itself will need to evolve and keep pace with this changing marketplace if it is to remain fit for purpose, and how best it can do that requires thorough consideration so that those who will be driving this change are best prepared.

Gareth Wood is a graduate in European Politics Society and Culture from Lancaster University. He is now studying the GDL at the University of Law.

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7 Comments

Pantman

In the Orange World, specialised workers maximise their opportunities through digital self-marketing…

This is some kind of utopian myth. The reality is that the ‘specialised workers’ are cleaners, shop assistants, delivery drivers and hospitality staff.

If I do 15 hours for firm A, and 15 hours for firm B, then do both of them need to give me statutory sick pay, or mandatory holidays, especially if I work from home on a regular basis?

The anser is obviously ‘yes’. If you are working, in effect, full time hours, spread across several employers, there is no reason why you should not have the same benefits as someone else working the same hours for a single employer. That may well be a administrative burden on the employer, but that is probably a course they have chosen in attempting to lower their overheads (if things haven’t changed, then they probably have lower employer’s NI contributions).

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Anonymous barrister

The title of the article suggests the law has to change because (right now) it cannot cope with the employment relationships created by Uber. The article does not refer to the Employment Tribunal judgment in Aslam (and others) v. Uber, or to any of the relevant employment law. If the author had looked at the Uber judgment he would have seen that the drivers in the Uber case won using employment law which applies right now.

At the risk of sounding harsh, the article does not address the title at all. It provides instead, an interesting discussion of what employment arrangements in the future might look like, and how Uber’s approach might become more common. The problem is that the title suggests English law is a static, and currently unable to respond to changing circumstances. This is wrong. The casual worker arrangement Uber has adopted is actually nothing new, even if using an App to provide a taxi service is. The concept of the worker, or employee in English law is very malleable and subject to a large amount of judicial innovation. The statutory framework to determine worker and employee status is also very flexible, but there are numerous authorities from the senior courts which emphasise the fact sensitive nature of the exercise in determining worker, or employee status. This is, unfortunately for anyone writing about it, an area where judicial innovation is abundant and so it is also difficult to identify specific categories of individual who are disadvantaged by the broad tests applied. The real problem for individuals is that organisations increasingly use informal arrangements conferring apparent self-employed status in order to shirk their responsibilities. If these individuals are dismissed or not paid holiday pay they may be fortunate enough to have legal expenses insurance, or like-minded colleagues willing to pool resources to give them access to a solicitor and then counsel who can use the law as it stands to secure them what they are entitled to under the law as it is right now. Most of these individuals will be on low wages and so the toxic combination of high Employment Tribunal fees (£1,200) and the legal uncertainty in any claim deter them from pursuing their meritorious claims. My own experience as an employment barrister is that there is plenty in the law to help individuals, but very real barriers to them gaining access to the same.

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Anonymous

…high Employment Tribunal fees (£1,200)

It seems an odd situation to me that the respondent in Employment Tribunal hearings doesn’t have to pay any fees (ie when denying the claims and effectively calling for a hearing), which is clearly not the same situation as in the small claims court, for example.

This seems inherently unfair on the claimant.

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Sergeant Pepper

Dear Gareth , LC deleted 6 positive comments on your article. It left one positive comment which two people didn’t like (LC staff?) and two negative comments.

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