The Gig Economy Basics

Question 1

Issue with “Gig Economy” wording (IWGB)

+

Stefano’s definition of Gig Eco

Answer 1

Gig eco= crowdwork + on demand apps

“Gig economy term misleading. Implies a number of independent individuals doing odd jobs to supplement income. But experience: many workers are dependent on these jobs as their primary source of income.

    - Compare w McKinsey Study. IWGB response: interpretation of such survey results will depend to a large degree on the survey design, the questions asked, who asked the questions, who answered the questions.
    - Misleading approach: 'gig eco' is unregulated and regulation should start from scratch (Eg: Minimum Wage for self-employed = minimum wage floor for gig eco. But employers are already circumventing this w no consequence."

Question 2

Why did the Gig Economy Rise? What value did they add?

Answer 2

• spoke language of markets, but operated like old fashioned employers

(Tomasetti): v transaction costs not all, they are just latest example of ‘post industrial coporation’ = max profit by creating shareholder value via regulatory arbitrage
(Flescher): regulatory arbitrage: manupliate deal to take advantage of gap between eco substance and regulatory treatment

(Stigler): asymmetric info: regulated > regulator info -> doublespeak

Question 3

(McKinsey): Gig Worker categories

Answer 3

“1. Free agents: actively choose this

2. Causal workers
3. Reluctants
4. financially strapped

Most 1 and 2”

Question 4

Positives of gig economy:

Answer 4

targets traditionally excluded groups
Minimise transaction costs,
flexibility

Question 5

Problems w Gig Economy

Answer 5

Shifting of risks and responsibilities to individual workers (without rewards)

Income stability

Workers in disguised employment relationships

Independent contractors = no employment protection

Misclassification of employment status

Cheap labour = no innovation (workers have no incentive to innovate)”

Question 6

Taylor’s strict management theory

Answer 6

platforms would argue matching w reputation systems
-> (Slee): Reputations systems fail should be substitute (bad) management structure to control workers

Wage control: large numbers below minimum wage -> not standard market forces. Surplus labour + liimited tasks + expenses + share
Rating Sanctions

Eg: Ubers new safety features = controlling shift times

Question 7

Danger of focusing on true intent -> should focus on true agreement

Answer 7

[Autoclenz] [Uber]

New case: Dynasystems v Moseley (2018)”

Question 8

Autoclenz Ltd v Belcher (used in uber case)

Answer 8

• Facts: A provides car-cleaning services, contracts w BCA. Respondents are 20 valeters who cleaned the cars.
• R claimed: workers under NMWR + WTR = entitled to minimum wage and receive statutory paid leave. Neither paid.
• Issue: were they workers?
  
  • Employment Tribunal: they were not under a, but under b.
    CoA: under both a and b.

Question 9

Uber v Aslam Appeal

Answer 9

• LOOK IN ALL CIRCUMSTANCES FOR THE TRUE AGREEMENT
• [autoclenz] drivers not pointed towards direct contract r/s w riders in reality
• [Autoclenz] : court can disregard contractual terms if it seeks to characterise r/s in an artificial way
• Held: Uber drivers are workers. (Dissenting: Underhill)”

Question 10

IGWB v Deliveroo [BEFORE]

Answer 10

Only gig case successful so far (for company)
Requirement for employment:
1. Obligation to perform work
2. Personal Service
[Pimlico]: entirely dependent on contract
[Autoclenz]L term of agreement
-> Deliveroo argued their sub clause

JUDICIAL REVIEW:
- Ground: didn’t deal w Art 11 ECHR properly.
Court:
1. Art 11 not engaged bc not employment [Sindicatul]
2. even if engaged, would be justified
3. ‘worker’ definition, good balance of interest. Can still join, but cannot use UK legislation to compulsory recognise
4. s298 cannot be ‘read down’ -> ““normally works”” = personal work obligation
5. rej dominant feature test [PIMLICO] = personal obligation is SOLE TEST

Question 11

Deliveroo Shadiness

Answer 11

Deliveroo took advantage of the fact that the CAC needs to look at the situation at the time of the hearing rather than at the time the application was submitted, and issued entirely new contracts to riders (obviously to try and defeat our claim) just weeks before the hearing.

Question 12

What did Bogg think of the Deliveroo case?

Answer 12

wrong judgement.

1) misapplies employment r/s under Art 11
2) applies broad margin of appreciation Art 11 reasoning

1) definition of worker still vague, ILO suspensory ‘everyone’ vs ILO rec ‘disguised employment’ -> legal rule which threatens the existence of contractual term = conclusive of negotiation of worker status is DEFECTIVE.

2) Court used [BOOTS] and [UNITE] to justify interference, but in both these cases had opportunity to collective bargain. Also, argument saying ‘can join’ doesn’t take into account TULRCA to protect from anti-union action now cannot protect. Fails to understand the nature of the collective agreement.
- Riders likely to be found self-employed under EU [FNV]
- strike action opens tort liabilities (no s244 TULRCA)
- Argument:
1. Using ILO rec (supporting UBER) -> all circumstance for true agreement.
2. if the existence of r/s [AUTOCLENZ] ““purposive approach””
3. where HR of collective bargaining touched, purposive strong favour inclusion.

Suggestions:

• radical: remove ‘personally’ -> just relevant factor
• less radical: interpret more purposively.

Question 13

Dominant feature’ test of personal work

Answer 13

Pimlico:
Sub clause factors
1. reason
2. ID of sub
3. Duration of sub

Question 14

1. Does religious term relate to employment -> is it discriminatory?
2. if yes -> is a genuine occupational requirement?

Answer 14

Jivraj case
SC: arbitrators ≠ employees. (not subordinate)
Also, would be considered an occupational requirement bc commercially unattractive.

Question 15

potential financial consequences for organisations that employ people on a self-employed basis when they are in fact workers.

Answer 15

Sash Window Case