In this edition we shall discuss:
· Making sense of the Uber legal decision
· Data protection and Yahoo & WhatsApp
· UK ICO recommendation personal liability for directors for breach of data protection
· Heathrow expansion
1. Aslam & Others v Uber BV & Others (2016)
Uber has an app and its customers use this app to get access to a cheaper taxi service. The customers pay Uber by credit or debit card. The drivers are paid money once a week by Uber who deduct a percentage (25%) from the total profits made by the drivers. When the Claimants had started to work for Uber the deduction was in fact 20%.
A claim was brought by a number of Uber drivers stated that they were not self-employed contractors as indicated by Uber. Instead they were in reality employed workers, notwithstanding what the contract between the parties state and accordingly they were entitled to protection under the current employment law.
The central issue: to determine whether or not an Uber driver is a ‘worker’ is whether or not Uber exercised control. What the drivers had to show was that Uber controlled them and they were not truly independent.
At paragraphs 52 & 53 are the legal reasons why the drivers argued that they were controlled by Uber. For example Uber would force drivers to turn off the app for 5 minutes if they had declined 3 trips whilst they were meant to be working. In other circumstances, they were forced to log off the app for 10 minutes as a penalty, if they were in breach of Uber’s rules. The drivers also highlighted to the tribunal that there was further control by Uber through its rating system (see paragraph 54).
Uber management, Ms Bertram denied that Uber exercised control. Ms Bertram said that no member of management at Uber advised the driver to take a particular route. This statement was true, however everything at Uber was done electronically and the drivers were provided with a route courtesy of the system. The Judges accepted the evidence of Mr Farah that if a driver did not drive a specific set route then Uber would deduct money from the driver and provide the passenger with a refund.
To illustrate that the drivers were self-employed, at paragraph 60, Uber highlighted that:-
1. Drivers were responsible for their own PH licence.
2. Drivers were self-employed for tax purposes.
3. Driver were free to elect what Uber products they used.
4. Drivers met all expenses for running their own vehicles.
5. Drivers are not provided with an Uber uniform.
Uber also said that even if the court determined that the drivers were ‘workers’. They were contractually bound by ‘Dutch law’ and not UK employment law.
It was held that the Uber drivers were ‘workers’ in accordance with the definition provided by s230 (3) (b) of the ERA[i]. Thus they were not self- employed contractors. The tribunal had looked at the case law. The case law favoured the Uber drivers’ case that they were workers. Thus although Uber tried to prepare a business model that would ensure it was not an employers. The business model, which the tribunal criticised failed to achieve its object.
The decision means that the Uber drivers are entitled to holiday pay. Their working hours are to be carried out in accordance with the Work Time Regulations. They will be entitled to receive the National Minimum Wage and they will be protected by the whistleblowing legislation.
Tips from the Uber Case!!!
The lesson to learn here is quite simple. Parties can say that the person providing the service is a self-employed contractor and that person pays their own tax and national insurance as well as the expenses of being self-employed. A contract has been drawn up to back up the legal position agreed between the parties. However when the independent contractor seeks to challenge their status and they do more often than you think. The first thing a tribunal judge or a court will look at is whether or not the other party to the proceedings exercises control. If a tribunal can see a lot of control being exercised by a defendant, it is highly likely the tribunal will impose the worker status as they have done in the Uber case.
Some employers may want to review their contracts with staff and if they can see that they are exercising a lot of control over the person’s working life. It may be prudent to offer them a permanent employment contract to remain with the law. Rather than face the cost of a legal challenge to be classified by the court as a worker with employment law rights.
2. WhatsApp & Yahoo– data protection issues
WhatsApp & Facebook recently joined forces. In doing so they decided that they would share information between the two groups. Europe Data Protection Authorities have asked WhatsApp and Facebook to pause the sharing of people's data between the two groups and to communicate information to the s29 Working Party that confirms they will assure the relevant authorities in Europe that they will not abuse their position and that the public’s privacy will be protected in accordance with Europe’s Data Protection law.
Yahoo, also admitted recently that in 2014 there was a data protection breach that involved the account of 500 million users. Yahoo had also allowed the US intelligence authorities to scan public information to the dismay of the Data Protection Working Party. The working party has requested that Yahoo should communicate with them issues about this breach as well as confirm that they had notified all the users involved. The working party has also requested that Yahoo should cooperate with all national data protection authorities who may decide to investigate their breach.
The data protection authority has written to both companies and it is my understanding that they are cooperating.
The Working Party will be looking into these breaches in November 2016.
3. ICO – directors should be personally liable for breach of data protection law
The Information Commissioner, Elizabeth Denham recently advised the Commons Public Bill Committee as they were discussing the Digital Economy Bill that she was for directors being made personally responsible for Data Protection Breaches. We have seen some high profile breaches over the last 18 months (UK and USA). TalkTalk is always the breach that comes to mind and then Ashley Madison to name but a few. It sounds like a good idea, so let us see what happens.
Ms Denham may be motivated by the fact that last year the ICO fined UK companies £4 million pounds, but collected only a small portion of this sum.
4. Heathrow Expansion
The government recently announced that Heathrow will have its third runway. The Department for Transport stated that the third runway would bring economic benefit to the wider economy worth £61 billion and it would create 77,000 jobs over 14 years.[ii] Some businesses would have been ecstatic by the news of the expansion others (for example those supporting Gatwick) less so.
What is certain is that the people who live close to the airport, the public authorities and environmental groups are not happy at all. Many view the expansion as an unnecessary evil. Zach Goldsmith resigned from his post and is now standing as an independent. Boris Johnson has made his unhappiness with the airport expansion well known.
The result, it is highly likely that there will see a legal challenge in the courts to the proposed expansion. The reason aviation is responsible for a lot of pollution. The air around Heathrow is not clean and expansion will make the air quality worse not better for the people who live around the Heathrow area. Building the third run way would further breach air pollution laws. It is believed that the proposed expansion fly’s in the face of the recent Paris Climate Agreement which we recently executed. Thus Tory MP’s are getting together to bring the government to court so as to fight the expansion. So although the runway has been approved to keep the UK economy afloat; there is no guarantee it will go ahead. If the MP’s can get good, creative lawyers to challenge the expansion they may win.
It will be worth watching to see if proceedings are issued in the not too distant future.
[i] Employment Rights Act 1996