Aslam v Uber and a few implications for Uber’s entry into Trinidad

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A first-instance Court in the United Kingdom ruled

in October 2016 that the relationship between, ride-sharing app, Uber and its drivers was that of an employer and employee. Uber unsuccessfully contended that its drivers were merely independent contractors. The case –  Aslam v Uber BV [2017] IRLR 4 – naturally sent ripples throughout the gig-economy, given the wider implications for similar gig-apps.

One of the larger potential implications of that decision is that the business model of Uber and other gig-apps will have to be adjusted to account for the fact that they now have more employees. With drivers as employees and not independent contractors, it means, for example, that those drivers now enjoy entitlements like minimum wage and leave pay.

Uber, like many hugely successful internet giants, operates a multi-side platform. The basic idea is, distinct groups of users of the platform provide network benefits to each other (think of Google’s ads. Those who buy adwords aren’t the same as those who are searching on Google but both are ‘customers’ of Google). In Uber’s case, one distinct user group would be the drivers and the other, passengers. Broadly, the Aslam case, potentially means that Uber is being asked to merge its role with one of it’s target groups. In the result, Uber would be forced to abandon it’s role as a middle-man providing a two-sided market platform in favour of the less dynamic, traditional seller-to-purchaser sales

model.

Another implication, albeit indirect, is that Courts in other jurisdictions may opt to follow the U.K.’s position. The result: Uber’s business model and bottom-line could be impacted far beyond the shores of England. In this prevailing context, Uber recently announced its debut in Trinidad and Tobago; a first for the Caribbean region. On the face of it, a legal development in the United Kingdom has no direct connection with what happens in the twin-island republic. However, on deeper reflection, one will recall that Trinidad and Tobago’s legal system has its roots in – and shares a common legal heritage with – the U.K. via the Common Law. This, therefore, means that decisions made in U.K. courts, while not binding on any Trinidadian court, are at least, highly persuasive. 

Another minor matter to note, Trinidad, like the U.K., has a general provision in its laws allowing for the payment of a minimum wage. See generally, the Minimum Wage Act  and the Minimum Wage Order 2015. Accordingly, on the face of the current statutory regime, any future designation of Uber as an employer, at least theoretically, opens the doors to drivers in Trinidad, like their colleagues in the Aslam case, being entitled to a minimum wage.

Before getting too far ahead of ourselves, it is important to note that Aslam v Uber is the subject of a pending appeal by Uber. Accordingly, there is no certainty that the decision of the ERT will, ultimately, stand. 

Future developments in Aslam may, ultimately, force a reworking of Uber’s business-model in a number of its markets including Trinidad and, depending on the outcome, may well see it pull out of some of those markets. Therefore, how it navigates this and dozens of related legal battles targeted at its model will likely determine the continued meteoric rise of the gig-economy juggernaut or… the beginning of its demise. 

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