Late on Friday night, Labour launched its much anticipated manifesto for workers rights ahead of the British general elections on July 4th. What was once called 'A New Deal for Working People' is now refitted as 'Labour's Plan To Make Work Pay'. The last minute rebrand has been interpreted by some as design to more determinedly signal a business friendly tone. Certainly, it was a strange decision for the party to release what should be a central plank to its overall election manifesto so late on a Friday night before a three day holiday weekend.
Dither and delay: plus ça change, plus c'est la même chose
Ambivalence reigns from the start of the manifesto. Labour promises swift action on worker rights but later backtracks.
Too much time has been lost already, so we will hit the ground running and introduce legislation within 100 days of entering government.
The manifesto even gives voice to the frustration we all feel after years of process, consultation and, ultimately, inaction by the outgoing Tory government. This is no better exemplified than by the Taylor Review.
Many of the reforms we are setting out have been discussed and debated for years, with some being consulted on as part of the Theresa May government's response to the 2017 Taylor Review. We will bring an end to the years of failure, dither and delay, finally bringing about the change our country so desperately needs.
But then the manifesto immediately sets course precisely for the same 'dither', 'delay' and diminished expectations they've rightly accused the Tory government of. Whilst Labour promises employment legislation in the first 100 days, gig employment reforms are set to be kicked down the road for still more of the same discussion, debate, obfuscation and delay we've had for years.
We have acknowledged that there are other areas of the New Deal that will take longer to review and implement. We will carry out full and detailed consultation on our plans to move towards a single status of worker and we will conduct a review of parental leave within the first year of a Labour government.
Flexibility for whom?
Then there is the troubling and erroneous assumption that it is the poorest who benefit from work flexibility and it is only the promise of flexibility that brings them into the job market. This fallacy is straight from the playbook of Uber, Bolt, Just Eat and Deliveroo. It is indicative of the subtle Faustian trade that such employer granted flexibility must necessarily require the sacrifice of rights by their workers. It does not. The poor have always had to work hard and for most in the gig economy the only true flexibility is the flexibility to work very long hours for multiple employers across multiple apps.
The UK labour market performs well in creating jobs and new opportunities to work flexibly brings benefits for many workers. But whilst this has often benefited the poorest in society bringing people into work, without proper safeguards, this becomes one-sided, with workers bearing all the risk and unable to plan and live.
Employment status - are we stuck in 2016?
On the dogged question of determining worker status, the Labour manifesto forwards a line of argument long ago made redundant by the crystal clear and emphatic 2016 Employment Tribunal ruling against Uber, later unanimously upheld by the Supreme Court in 2021.
Determining which category you are in – and your access to various employment rights and protections – requires knowledge of complex legal tests and an “encyclopedic knowledge of case law”. This means many workers find it difficult to get a clear picture of where they sit and what protections they are owed, whilst business can also struggle to properly place staff and comply with legal obligations. The rise of new technologies and ways of working has exacerbated this challenge, with workers and businesses struggling to apply the complex legal framework to novel forms of working and operating.
The manifesto then launches into a convoluted and vague commitment to 'move towards' reform. But it is not at all clear that gig workers will ever find themselves on the right side of employment protection line in this proposed binary framework when or if it ever emerges.
Therefore, we will move towards a single status of worker and transition towards a simpler two-part framework for employment status. We will consult in detail on a simpler framework that differentiates between workers and the genuinely self employed. We will consult in detail on how a simpler framework that differentiates between workers and the genuinely self-employed could properly capture the breadth of employment relationships in the UK, adapt to changing forms of employment and guard against a minority of employers using novel contractual forms to avoid legal obligations, while ensuring that workers can benefit from flexible working where they choose to do so. We will also evaluate the way flexibility of ‘worker’ status is used and understood across the workforce and the way it interacts with and is incorporated into collective agreements.
There has been extensive consultation for the Taylor Review and there have been at least two parliamentary select committee inquiries. We've had endless litigation against Uber & Deliveroo with multiple judgments entered. We can even draw upon the legislative experience of the Platform Work Directive in the EU and Assembly Bill 5 in California. With years of knowledge base & experience to draw from, it is hard to see what else a prospective Labour government might want to further explore about the gig economy in yet more consultation. Surely, after fourteen years in opposition and twelve years of gig economy employment in Britain, Labour has had enough time to prepare an 'oven ready' legislative proposal to curb the worst abuses of the gig economy?
Enforcement, litigation and the perils of group action
In a classic argument of false equivalency ('there are good people on both sides', or maybe rather, 'a plague on both their houses') the manifesto forgives global gig economy platform employers for years of big money employment status litigation against their own workers.
The complexity has meant businesses and workers are reliant on lengthy legal processes to resolve issues.
Workers had no choice but to litigate because there has simply been no government enforcement. The workers did not go to court against Uber and Deliveroo for the joyful pursuit of 'encyclopedic legal knowledge'. But this framing in the manifesto suggests that employers were somehow passive victims of the litigation made necessary because the law was somehow unclear. Nothing could be further from the truth and the unanimous Supreme Court decision is testament to that. It is always the employer's obligation to respect the statutory rights of their workers. They should not rely on precarious workers litigating to make them do so. They knew they were wrong but litigated anyway to the bitter end and then some. Uber, for example, has never accepted or complied with the full breadth of the ruling against them.
The promised Single Enforcement Body is a piece of good news in the manifesto but the devil is in the detail of how well resourced and empowered it will be. Although workers did find some gains against rogue gig economy employers in early pro-bono litigation, the arrival of no win/no fee lawyers has latterly been a problem. Platforms are settling group litigation short of a legal judgment, so workers recover some portion of the wage theft and lawyers get wealthy, but nothing is fixed since no judgments are entered on the record. A competent enforcement body is now sorely needed.
One serious outstanding legal issue beyond employment classification is the treatment of stand by time as working time. As much as 45% of true working time for Uber drivers is stand by time which they should be paid for but are not. The over supply of workers working unpaid stand by time allows passenger and food delivery transport employers to rapidly respond to customer demand, build network effects but depress wages. One of the great ironies of technology enabled gig platforms is their dreadful but deliberate inefficiency. Yet on this central issue of working time determination, arguably as important as employment status, the manifesto is silent.
Technology and surveillance - old wine in new bottles
The portion of the manifesto dealing with 'technology and surveillance' is probably the area of biggest disappointment for gig workers. The manifesto's focus on employment status, laudable as it may be, is in some respects, yesterday's battle. In the past, gig economy platforms relied on complex, artificial contracts to conceal a true employment relationship to deny statutory protections. Today, they conceal the relationship in opaque algorithmic management controls.
The current legal regime requires workers to prove they are in an employment relationship if they seek to challenge for employment classification. While the EU Platform Work directive reverses the burden of proof, the Labour manifesto is silent also on this issue. Proving an employment relationship in Britain is increasingly difficult to do when the algorithms, and individual worker profiles that drive them to determine pay, piece work allocation, performance management and robo-firings, remain hidden. Worker Info Exchange's successful litigation against Uber and Ola Cabs is a case study in just how difficult it is for workers to challenge unfair robo-firings and to get transparency on automated decision making for pay and work allocation. Legislation is urgently needed to address this.
Algorithmic management of gig work is becoming more aggressive as new advances in technology emerge. Just as growth slows for maturing gig economy platforms, the search for profits and the consequent squeezing of workers is becoming more desperate. In the past eighteen months, dangerous new technologies such as discriminatory dynamic pay and pricing systems have been unleashed on gig workers. Labour's scant attention in the manifesto to these potent threats to workers is wholly inadequate.
Furthermore, recognising the advancement of technologies at work, the next Labour government will work with workers and their trade unions, employers and experts to examine what AI and new technologies mean for work, jobs and skills, and how to promote best practice in safeguarding against the invasion of privacy through surveillance technology, spyware and discriminatory algorithmic decision making.
At a minimum Labour will ensure that proposals to introduce surveillance technologies would be subject to consultation and negotiation, with a view to agreement of trade unions or elected staff representatives where there is no trade union. Where there is a collective agreement relating to surveillance this will not override it.
Regulatory capture of the British state by Uber and Deliveroo
Companies like Uber and Just Eat have, to a greater or lesser extent, accepted they must do more for their workers than treat them as commercial contractors. Its just a case of how little they can get away with and how little our governments will accept from them. Uber is aggressively pursuing an independent contractor plus (IC+) strategy where they seek a deal for workers that falls far short of full employment status. Just Eat opportunistically operates a hybrid model of employment and self employment. In some countries they choose to employ their workforce but in others, where they can get away with it, they engage their workers as independent contractors. Last year, they stripped UK workers of employment protections and replaced them as independent contractors - a classic fire and rehire move. Just Eat management later boasted to investors of the resultant cost savings.
Gig platform employers are politically engaged in many international jurisdictions in a desperate effort to bend the regulatory framework to their will, to put their private interests over the public good. Uber and Deliveroo were welcomed to Labour party conferences and Deliveroo recently sponsored a London Labour party dinner. Indeed, there has long been suspicion that the gig economy bosses have already convinced Keir Starmer to water down worker rights protections.
It is concerning then that Labour is not prepared to now fast track employment rights for gig workers in the first 100 days of any prospective government. It is the clearest sign yet that Uber and Deliveroo's years of campaigning to keep their workers from having full employment protections is succeeding. Even ahead of any election they've already scored a win and now they'll want to co-write new law to make sure that win endures.
In the early days of the current government, when the Tories were are at the height of their powers, both Deliveroo and Uber cleverly targeted recruitment of Conservative insiders such as Rachel Whetstone and Thea Rogers. More recently, Uber has targeted the Labour party with the recruitment of insiders Emma O'Dwyer, Alex Doel and Cllr Princess Bright while Deliveroo picked off Joe Carberry.
Allied against all of this inside, big money, influence are millions of politically marginalised, precarious workers. These are the people a prospective Labour government should not forget nor neglect and especially not now when hopes are high. These are the people the Labour party should champion first, not last.
Gig workers must now urgently join up to work within and beyond their unions to influence the course of Labour party policy before the elections. They then need to stay engaged after the elections to hold any newly elected government closely to account.
For now, the Labour party manifesto on gig economy employment reform remains dangerously ambivalent. Labour should level with gig workers ahead of the election and make clear their commitment, one way or the other.