Is one of the innovations of the gig economy the creation of a section of the workforce who can go on strike without risk or consequences? There is something interesting about the legal status of today’s strike action by Uber drivers.
Uber drivers are not in business on their own account, according to the case they have won in the employment tribunal and employment appeal tribunal (Uber has appealed this finding to the Court of Appeal which will hear the case at the end of this month). It was found that they are workers, with rights to national minimum/living wage, statutory sick and holiday pay but, crucially, they are not employees.
There is no obligation on Uber to provide drivers with work and they can choose whether or not to login to the app as available to work so an Uber driver who goes on strike is not acting breaching their contract. This means that, unlike strikes by employees, there is no legal requirement for the strike to be about a trade dispute and there is no requirement to hold a strike ballot, demonstrate majority support for the strike or notify the business in advance.
However, because the strike is being endorsed by the union, the business would still not be able to engage agency workers to cover the work usually carried out by striking drivers. Of course, it probably will not need to because the likely numbers on strike today are only a very small proportion of the total number of Uber drivers in the areas potentially affected.
If a business thinks that the law on industrial action gives it no protection against strikes by workers, it would need to remember that non- employees do not have legal protection against unfair dismissal and taking part in a strike is not one of the trade union activities in relation to which workers have protection against detrimental treatment.
Uber could then think that it has a free hand to decide not to allow those drivers who had taken part in the strike to access work via its app again. However, this would risk breaching the law preventing the blacklisting of trade union members. In reality, unless the strike is supported by a significant proportion of Uber drivers or customers, the effect on the business will probably be minimal but this does show the attractions of strikes in the gig economy if unions can organise a large enough section of the workforce to have an impact.
9th October 2018