After the Supreme Court(s): recent high-profile rulings and access to social protection for gig…

After the Supreme Court(s): recent high-profile rulings and access to social protection for gig workers

The gig economy has been with us for not much longer than a decade, and yet there is already a history to be told. In a recent conversation with various stakeholders taking part in Reshaping Work’s Multistakeholder Dialogue Project on the future of work, Jeremias Adams-Prassl, Professor of Law at Oxford University, presented three successive waves at the interaction of non-standard forms of employment and regulation.

The first wave was dominated by suggestions that gig work was not economic activity in the traditional sense, as a result of which traditional regulatory structures like contractual employment were said simply not to apply to the gig economy.

During the second wave, we entered a world of “voluntary benefits”, where various platforms in the gig economy started to provide certain benefits, whether it was insurance policies or more basic things like helmets and safety equipment. However, these acts were said to be triggered not by legal obligations to do so, but rather on a voluntary and competitive basis.

Today, we are starting to see the third wave of regulation, potentially becoming the dominant model in current times. This is a period of actual legal regulation, where it is accepted that gig work is working like any other form of work, and therefore the traditional regulatory structures should apply.

Recent Supreme appellate decisions in France, Spain, and the UK are ground-breaking and illustrative of the third wave. In France, a decision handed down in 2019 challenged legislation suggesting that voluntary benefits provision by platforms could not be counted as evidence to be used by a judge in reclassification, with the Court of Cassation most recently deciding that being able to choose your working hours did not preclude being subordinated to the platform once logged on (thus solving one of the main legal criteria for employment status). Therefore, the court found that Uber drivers were employees.

Similar to the events in France, the Spanish court found that Glovo couriers were, in fact, employees of the platform. One of the factors particularly highlighted in this decision was that tight algorithmic control was exercised in terms of choice of routes and assignment of tasks, ultimately restricting freedoms of choice. There was a relatively quick follow-up — a tripartite social agreement was reached in March 2021, essentially introducing presumptions of employment status as well as provisions on algorithmic transparency.

Lastly, the UK Supreme Court ruled that Uber drives are workers. The important part is that it did not rule that they were employees, but not because they could not be such. It was simply because the case was always brought on the basis of worker status. It was never about employee status, which may well have been established given the tight control on the facts. Furthermore, whilst it has been suggested that the UK ruling is limited in its scope, i.e. limited to the small group of drivers, which were using the Uber app in 2016 that is not the case: the ruling in principle applies similarly situated workers across the board and grants access to the rights bestowed on them by Parliament. That includes all sorts of basic individual rights, but also crucially, collective rights.

In concluding, Professor Adams-Prassl suggested that the status debate is increasingly starting to become clear — gig workers are employees, as senior courts across Europe continue to confirm. The interesting question that comes next is, what sort of rights do we then need? Is it good enough to just have the traditional set of employment rights? Or does the gig economy need something more specific? The one important thing to watch is the legislation consultation, which the European Commission put out in February this year. In this early stage, we are trying to work out which way it could go. There are at least two potential avenues.

The first direction will be to actually have baseline standards for all workers’ rights that apply to all workers who are on zero hours or variable kinds of time contracts, regardless of whether they are employed through an app or through a traditional booking agency. On the other hand, if you think about it going down to the California lobby, following proposition 22, we can see the introduction of a very specific regime for transport and delivery apps where we have a limited set of rights, not the full traditional set of employment rights.