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Gig economy update

Proposed changes to law; Uber, Deliveroo and NG27 in court; Games Workers Unite

A SERIES of proposals for changes to employment law were published by the UK Government in December. So far there are no dates, timetables or commitments - just the proposals. They emerged from the Taylor Review into modern working practices and precarious work and consultations that followed.

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A Deliveroo push bike rider on Shoreditch High Street

It's unclear whether these will have much of a positive impact on the self-employed, although any measures which help to mitigate "bogus self-employment" and other negative aspects of the gig economy will help those genuinely self-employed by choice as well. Proposals include:

  • The right to for those deemed in legislation to be "workers" as well as employees to request a more predictable and stable contract. The right to "request" something in current labour market conditions is rather meaningless without powers to enforce employer compliance with such requests.
  • Clarification of the tests for employment status. A lot of Employment Tribunal and Appeal Tribunal time is currently taken up with employment status cases (see below), so this may have a positive outcome for some freelances who do regular shifts for the same client.
  • Less emphasis on the notional right - rarely in practice exercised - to send a substitute, as a test on whether someone is self-employed. In today's labour market, new contracts that "allow" someone to send a substitute can easily be imposed on workers, making them technically self-employed. Deliveroo did this recently to its riders, to stop them earning the right to collective bargaining. Instead, it is proposed that the degree of "control" exercised over a worker by the party engaging them should have more weight in determining whether they are self-employed or "workers".This could ultimately have an impact on the current proliferation of bogus self-employment.
  • New guidance to support the interpretation of holiday pay rates, and an updated and improved holiday entitlement calculator and awareness campaign. Some freelances who do regular work for the same client have won, with the NUJ's help, considerable awards of back-dated holiday pay, so this proposal could be significant.
  • The Department of Work and Pensions is to publish a paper setting out the Government approach to increasing "pension participation" and savings among the self-employed.
  • Changing the break in continuous service - currently, a gap of one week in employment can break continuous service. The plan is to extend this to four weeks. This could be significant for freelances who work regular "casual" shifts.
  • The burden of proof in Employment Tribunal hearings where employment status is in dispute should be reversed so the employer has to prove that the individual is not entitled. With Tribunal cases around "employment status" on the rise, this could be important.
  • The earlier plan to create a new status of "dependent contractors" for workers who are self-employed in name only has disappeared.

The NUJ will continue to work with the Federation of Entertainment Unions (FEU) to shape these proposals. Our thanks to Pamela Morton - NUJ National Organiser, Freelance and Wales - for the above summary.

There have been many court and Tribunal cases over employment status lately. In early December, a High Court Case case brought by the Independent Workers Union of Great Britain (IWGB), following a Central Arbitration Committee judgement, found that Deliveroo riders were not "workers" in the eyes of the law. They did not in law have a "contractual obligation to perform work personally". Deliveroo had imposed on them new contracts "allowing" them to send a substitute - in theory, as they'd have to carry out criminal record and immigration checks on their "substitute" first.

Consequently, IWGB could not apply for recognition to be entitled to conduct collective bargaining on behalf of the Deliveroo riders. Neither genuinely self-employed folk (like many freelance journalist) nor "bogus self-employed workers like Deliveroo riders can enjoy rights to collective bargaining; only employees have this right.

However, a Court of Appeal hearing soon afterwards upheld a series of earlier decisions and ruled that private hire drivers with Uber, who were also organised into the IWGB union as United Private Hire Drivers, are "workers" not independent contractors.

The IWGB is rarely out of court as the big corporate private hire companies, courier firms, taxi sharing app providers and food delivery internet intermediaries throw money into legal actions in their attempts to sustain their business model which relies on mobilising surplus bits of "flexible" labour via algorithms. The above Government proposals may ultimately make such cases harder for the corporates and easier for trade unions trying to win rights for gig economy workers.

See also our report on the National Gallery 27. They are expecting a Tribunal ruling, imminent as we go online, on whether they are self-employed freelances or workers with rights to contest unfair dismissal and to holiday pay. The NG 27 worked for the Gallery for many years, had deductions taxed at source, ate in the staff canteen and had to take part in regular performance assessments.

Bristol couriers working for Deliveroo, organised into the newly-formed Bristol Couriers Network, held an "inaugural strike" by logging out for two hours in October in protest at falling pay and to call for more transparency over their pay structure. Couriers with the IWW and IWGB unions took part. The Deliveroo website, which normally shows around 200 restaurants in the city serving food delivered by the company on any given day, was apparently down to 14 restaurants at one point on the day of the strike.

There was also a one-day Fast Food Shutdown in London, Brighton and other cites in October - over precarious contracts, low pay and union recognition. It was a co-ordinated strike by workers at Wetherspoons, TGI Fridays and McDonalds, organised into the BFAWU and GMB unions, and Deliveroo and Uber Eats riders in the IWGB. Strikers at some Wetherspoons pubs reported getting pay rises following the announcement of a strike ballot.

In other gig economy news, Games Workers Unite UK, inspired by the already-established Games Workers Unite in the USA, recently set up as a branch of the IWGB.

Founder members identify some of the key issues facing workers in the sector - most computer games industry workers are hired on short contracts and laid off once a game's development is finished.

In the run-up to completion of a project comes "the crunch" - ludicrous hours of unpaid overtime with many late nights. Games industry workers are expected to endure "the crunch and even to wear these extra hours as a badge of honour - computer games credits often boast about the number of takeaways that we ordered in," as workers worked late to complete games projects. There is also a lack of diversity in the industry, women working in the games industry report experiencing barriers to career progression because of their gender.