On 19 February 2021, the UK Supreme Court ruled in favour of Uber driver Yaseen Aslam in a case against Uber, ruling that Uber drivers are workers and not self-employed. This landmark victory has been lauded for its potential impact on employment law and the gig economy. By way of context, reference to work in the gig economy relates to work done by individuals that are classed as independent contractors, meaning they are not ‘employees’. It is arguable that many gig-economy workers are wrongly classified as self-employed. The impact of this mis-classification is significant as it alleviates pseudo-employers of the duty of care that is prescribed by the employer-employee relationship. Meanwhile, as non-employees, gig-economy workers may not be afforded protection against unfair dismissal, redundancy payments, minimum wage, paid holiday or sickness pay.
Uber has historically argued that its drivers, referred to as ‘partners’, are simply self-employed app users and not employees; that Uber itself is a technology platform and not a transportation company. However, The Supreme Court judgment concluded that ‘by logging onto the Uber app in London, a claimant driver came within the definition of a “worker” by entering into a contract with Uber London whereby he undertook to perform driving services for Uber London’. In other words, they concluded that Uber drivers should be recognised as workers. Leigh Day, the law firm representing thousands of Uber drivers in the case, believes Uber drivers could be entitled to an average of £12,000 each in compensation. Immigration and employment law are closely entwined, and I wonder how this case might impact immigration law, which is often premised on the employer-employee relationship.
An immediate consideration upon hearing of the ruling of 19 February 2021 was how this might impact the right to work checks. The requirement to establish an individual’s right to work in the UK, prior to the first day of their employment, is a technology of border control that is diffused into civil society via the employer-employee relationship. Threatened with the liability to pay a civil penalty if found to be employing illegal workers, employers are encouraged to exclude irregular migrants from employment opportunities. It is important to note, the obligation to conduct a right to work check does not extend to individuals that are not employed by a business.
A working example of this legislation playing out in practice arrived in my inbox a year ago when we received an urgent instruction from a UK-based company. The Home Office had conducted a compliance visit on the business’ premises and had found 12 illegal workers on site. The business had been warned of a potential liability to pay a civil penalty of up to £20,000 per illegal worker and was keen to act fast. After hours of research into the potential ramifications for the business, our phone call was strikingly brief, as the matter quickly fell from relevance. The business was ultimately able to avoid any civil penalty or negative ramifications, as the individuals were not technically employees, but rather were self-employed. I remember feeling overcome with anger that this loophole exists, wherein irregular migrants are criminalised while businesses profit from their labour. I think of those 12 individuals and how adversely their lives might have been affected by the events of that day, potentially subjected to indefinite detention and criminalised by an immigration system that serves to exclude them. I am struck by the sense that although the right to work checks serve to exclude, they also serve an important role in holding employers to account. However, perhaps the fault does not lie with the companies that make use of self-employed contractors, but rather a government that pours its efforts into creating an inhospitable environment for lower/differently skilled migrants.
All this said, I am hesitant to underestimate the positive impact that accessibility of income has for many who work in the gig economy. Individuals can more easily take on a few extra shifts, hold down more than one job and balance childcare without the commitment of meeting weekly hours targets. Particularly throughout the pandemic, there has been a dependency on the role of key players such as Uber, Amazon and Deliveroo, not only as these companies have delivered essential services to those isolating at home, but as they have provided a household income to many who had lost their jobs as a result of the pandemic. Given the less regulated nature of gig-economy roles, I would speculate whether they offer income opportunities to irregular or undocumented migrants who would otherwise struggle to do so within the more regulated employer-employee relationship. That said, this is a business model used by some of the wealthiest companies in the world, and one that I consider to be a catalyst for exploitation.
I am of the view that protecting and increasing the legal rights afforded to immigrants in the UK is of primary importance. People who hold time-limited immigration permissions in the UK are quite literally criminalised by virtue of having fewer rights than citizens, and therefore more things being illegal for them. For example, in 2020 the Home Office introduced a policy that means an individual can be deported on the grounds of rough sleeping, essentially criminalising homelessness. Having a criminal record can have particularly adverse consequences for migrants in the UK, as this can be grounds for an individual to be deported or indefinitely detained.
I strongly believe we need a UK immigration system that values all employment, including the lower/differently skilled work that is currently excluded from the ‘Skilled Worker’ visa route. In recognising gig-economy workers as employees, we could see a major shift in the interests of businesses such as Amazon, Deliveroo, Uber who might need to consider lobbying for greater accessibility and lower visa costs for lower/differently skilled migrants in the UK. This could lead to a more hospitable immigration system that recognises the value of a broader spectrum of work.
Fionnuala is a paralegal, specialising in UK immigration law. She has a Master’s in Migration and Diaspora Studies from SOAS and a Bachelor’s in Social Anthropology from LSE. She previously volunteered with Detention Action and London Migration Film Festival. This February she ran/swam and walked the equivalent distance of the English Channel to raise money for Safe Passage UK (whilst observing lockdown in a small village in Tipperary, Ireland).