Uber, Informal Work and the Expert Working Group on Discrimination Against Women
The decision of the London Employment Tribunal that Uber taxi drivers are employees and not self-employed is of global importance, in the face of the increase in all kinds of informal labour constructs, which include self-employed, casual and seasonal workers, part-time workers, temporary and agency workers, home workers, domestic workers, and unpaid family workers. Informal labour is no longer significant only in developing countries, where it sometimes characterises the majority of the workforce, but also in developed economies, where the workforce is becoming increasingly “flexibilized” as employers attempt to avoid regulation and cut labour costs.
The Human Rights Council Working Group on Discrimination against Women in its 2014 annual report to the Council A/HRC/26/39 flagged the disparate impact of the informalisation of labour on women. The impact is disparate both because of the sheer numbers of women who are in informal employment globally and also because, in addition to vulnerability to lower-than-minimum wages and lack of social security benefits (which is shared with men in informal labour), women are usually deprived of maternity benefits and parental care rights. Furthermore, in some highly feminized employment such as domestic work, women are sometimes excluded by express legislation, entirely or partially, from the protection of labour law.
In this context, the Working Group recommended that informal work be reduced by encouraging the creation of formal labour market jobs and reconstructed, where possible, by the use of legal techniques to bring these workers under the umbrella of protective labour law. It pointed out that “[r]econstructing informal employment is often possible through legal interpretation or law enforcement.” Indeed wherever there is an identifiable employing entity, it should be possible to impose employer obligations on that agent. It cited “[s]ome judicial good practice to void the use of “flexibilized” patterns of employment by employers seeking to avoid their labour law obligations; of extending anti-discrimination legislation to leased employees; and of applying a pro rata system to employment conditions of part-time, temporary or leased workers.” In its recommendation, the Working Group specified that “reconstructing informal labour, in order to guarantee decent work for women, also requires extending all social security rights, including maternity and care rights, to informal sector employees.”
The London Tribunal’s decision is a step on the way to re-establishing the scope of labour law as extending to all those persons who are employed for the profit of another entity. Where the increased costs for the employing entity are prohibitive, policy choices must be through public subsidies or tax relief and not through turning a blind eye to exploitative conditions of employment which are allowed to function outside the radar of international and local standards. Such considerations should not stand in the way of what might be termed ‘tearing the employment veil’.