Most debate about the growing gig economy and new forms of technology-driven work focuses on employment rights, but what about workers’ safety and health?
Whether it’s Deliveroo riders in their grey and blue livery, the anonymous courier at the door with your Amazon parcel, or the Uber driver responding to the tap of an app, they are all part of the gig economy and this is the workforce that springs to mind. But like so much in the hyper-flexible employment market, the term is so fluid that it can be hard to pin down.
The most recent definition comes from the UK Work and Pensions Committee’s report Self-employment and the Gig Economy (bit.ly/2qvuETv). Published in May, it describes the gig economy as encompassing a wide range of types and models of work.
“A common feature ... is a reliance on intermediary digital platforms or apps to connect self-employed workers with work,” it says. “Gig economy companies often operate in industries that have historically relied on self-employed workforces. New technology, however, enables them to operate on a scale which has substantial implications for the nature of work, the sectors in which they operate and the welfare state.”
The issue of the employment status and rights of gig economy workers was also the focus of a UK government-commissioned review of modern employment practices headed by the Royal Society of the Arts chief executive Matthew Taylor (bit.ly/2gINyFk), published on 12 July.
There are three main types of employment status:
Employment rights for workers include basic entitlements such as the national minimum wage, holiday pay and protection against unlawful discrimination. Employees have the same rights but can receive more rights such as maternity or paternity leave, itemised pay slips and the right to request flexible working.
Source: Arbitration and Conciliation Advisory Service
Millions like them
Those who work in the gig economy do many jobs, for many reasons. As well as couriers and cleaners, there are also well-paid professionals. “Self-employment is neither inherently good nor bad,” says the Work and Pensions Committee report. “It can represent entrepreneurial zeal and a highly desirable culture of self-reliance. It can also be deeply negative, allowing companies to evade responsibility for their workers’ wellbeing and increase their profits.”
Estimates of the size of the gig economy vary, but it’s large and getting larger. The 40,000 Uber drivers and 15,000 Deliveroo riders are only a small part of it. Five million people in the UK – 15% of the workforce – are now self-employed.
These platforms are in the spotlight now, but in the past the employment rights focus was on zero-hours contracts in companies such as Sports Direct. Last year 910,000 people worked on zero-hours contracts, according to the Office for National Statistics, compared with 100,000 in 2005.
New technology and cost are key drivers of the newest additions to the gig economy. A service such as Deliveroo was made possible only by the near-universal adoption of smartphones. Customers use an app to order dishes from a local restaurant that has signed up to the service. Deliveroo’s software groups together orders in an area, calculates the shortest routes between the delivery addresses and sends the details to the phone of a freelance courier, assuming each rider can make three deliveries an hour. The company charges 10% of each order. This novel way of distributing work allows the courier only remote contact with the company channelling the orders. Uber uses a similar model to allocate work to drivers.
Professor Ursula Huws of the University of Hertfordshire says new technology has always brought new work patterns and new risks. Huws has been researching changes in work since the 1970s, covering teleworking, then offshoring or outsourcing, now it’s the gig economy.
“Call me Cassandra, but I was the first person to work on VDU [visual display unit] eyesight risk,” she told IOSH Magazine.
“My analysis is that every time there’s a big financial crisis, four or five years along the line companies react by bringing in new technologies and new business models and work gets reorganised. New jobs don’t look like the old ones, and they appear in different places, so it can be challenging to get your head round.”
For the Work and Pensions Committee the main focus was the self-employed. These workers lack employment rights (see "Status update" box above) but also pose a major challenge to the welfare state.
“The apparent freedom companies enjoy to deny workers the rights that come with employee or worker status fails to protect workers from exploitation and poor working conditions. It also leads to substantial tax losses to the public purse, and potentially increases the strain on the welfare state,” the committee said.
While “current ways of categorising workers are creaking under the weight of the changing economy”, a series of court cases is testing the system further (see "Court gigs" box below), and the committee wants the government to make it harder for companies to classify their workforces as “self-employed”. Instead, the MPs argue, “worker” should be the default employment status and companies wanting to deviate from this model would need to make a case for using the “self-employed”. In July, Deliveroo said it was willing to pay benefits such as sick pay but could not do so in law while couriers retained their preferred status as self-employed.
The Taylor review proposed renaming the worker category as “dependent contractors” and that the government should ensure those contracting them make them aware of their rights to sick pay and provide them with a forecast of the amount of work they will be offered.
Though politicians are concerned that the gig economy reduces tax revenue and puts added strain on the welfare state, trade unions, academics and OSH professionals worry about its impact on worker protection.
Out on a limb
The Taylor report has little to say directly about safety and health, noting merely that “an employer has a duty to manage workplace risks and should treat workers on non-standard contracts no differently to other workers”.
Over the past 18 months, Huws has conducted surveys of the gig economy in the UK, Germany, Austria, Sweden and the Netherlands. “The next stage – which we are doing now in the UK – is doing in-depth interviews. And we’re hearing some horror stories the like of which I’ve not come across in many years of working on health and safety,” she says.
These include cycle couriers left with injuries but without compensation, ride-share drivers who have been attacked and robbed, and women whose work using task-based platforms involves clocking on electronically and waiting in risky areas, often late at night, without access even to a lavatory.
“One person we interviewed was called to a flat by a group of drug users who wanted her to go and pick up drugs for them. People are being asked to do very dangerous things yet the platforms take no responsibility,” says Huws. “And people do it because they live in fear of low ratings, which is a huge source of psychosocial stress.”
Ergonomist and human factors expert Professor Peter Buckle of Imperial College London says that vulnerability is increased because of the challenges of communicating important safety and health messages to such a contingent, atomised workforce.
The Central Arbitration Committee is currently considering whether Deliveroo riders are workers or independent contractors. The case, brought by the Independent Workers’ Union of Great Britain, could result in riders receiving statutory benefits such as paid holiday, national minimum wage and sick pay. In May, Deliveroo made changes to its contracts for riders removing a controversial clause that couriers could not challenge their self-employed status at employment tribunals. It also removed a clause that required couriers to give two weeks’ notice to terminate their agreement with the company.
In February 2017, the Court of Appeal rejected an appeal by Pimlico Plumbers over the employment status of Gary Smith. At an employment tribunal, Smith – a plumber who had worked for the firm for six years to 2011 – successfully challenged its view that he was self-employed, rather than a worker.
In October 2016, an employment tribunal found that Uber drivers James Farrar and Yaseen Aslam were workers, describing as “faintly ridiculous” Uber’s claim that its platform operated through a network of thousands of small businesses. Uber has appealed and a hearing is set for September.
“There’s some evidence that communication between an organisation and those on zero-hours is much poorer than those in full-time work. This has implications for how training is rolled out, how health and safety is perceived and how the organisation learns what’s happening on the front line, because if your delivery drivers are having accidents, how does the organisation find out?”
Stress in the gig economy is an issue that also concerns him, not least because flexible work is often synonymous with precarious work. “There is a language around the gig economy and zero-hours which reflects people in precarious employment,” he says. “It comes and goes, a few hours one week, lots the next. It’s a variable feast compared with those in full-time jobs whose stresses are very different.”
Anne Davies, a partner specialising in business crime at lawyers Gunnercooke, says the responsibility for contingent workers’ stress-related conditions is hard to attribute to an employer.
“Individuals may be making themselves vulnerable,” she says. “If they do three jobs simultaneously and have a nervous breakdown, it will be difficult for them to attribute blame to just one of those companies because they’ve chosen to work in that way. If they argue they’ve done so because they can’t be properly remunerated by doing just one job, or they are on a zero-hours contract, then that’s slightly different, but it will still be difficult to pin the blame on one organisation.”
Hand in hand with stress go risks associated with working hours and fatigue, according to Dan Shears, the GMB trade union’s national health safety and environment director. He says the multiple part-time jobs that Davies highlights are likely to lead to overwork. If you don’t know from day to day how much work you’ll get from any one employer, there’s a real risk of people working hugely excessive hours,” he says. “Nobody wants to get in a taxi knowing the driver’s already worked a 12-hour shift somewhere else. The issues around that are pretty profound.”
A model that encourages working regardless of fitness as well as creating insecurity is not just a worry for the customers, Shears argues. “If you’re in logistics doing temporary work you may well present a risk to other workers, especially if you’re using machinery or a forklift, for example. You have to question the degree of oversight, monitoring and control.”
Since the app operators can choose who they give work to, the model can act as a disincentive to reporting unsafe conditions. “There’s no doubt that there is chronic under-reporting in the logistics side of the gig economy and in entertainment,” Shears says. “Fatal accidents will always be found out, but severe injuries are invisible. As these are the people at the sharpest end who are most likely to suffer severe ill-health and injury, there’s every chance it’ll never be reported to anyone. That begs the question, when will the regulations catch up with the labour market?”
Many gig economy employers seem guarded about safety and health management. We asked Uber for an interview; it did not respond. Deliveroo told us only that its new hi-vis uniform – for which riders pay a £150 deposit – was designed in tandem with road safety charity Brake, and that it provides helmets, lights and safety training. Deliveroo also says on its website that it does not allow its delivery agents to accept cash, partly because it “creates a safer working environment”.
Davies says the fact that the biggest gig economy businesses in the UK operate delivery and taxi services leaves their workers in an under-scrutinised area for safety and health enforcement.
“One of the foibles of health and safety legislation is that the HSE [Health and Safety Executive] hasn’t captured information on road-related accidents,” she notes. “It’s always been a vacuum … a gap that exists even in the conventional relationship of employer and employee. So, focusing on delivery drivers is difficult because there’s already arguably an anomaly in the law with conventional drivers and there are very few prosecutions against companies.”
In the absence of better leadership and peer pressure in the industry, new unions such as the Independent Workers’ Union of Great Britain (IWGB) are springing up among cleaners, couriers, security guards and foster carers. “We are organising people who have not been organised,” says IWGB’s spokesperson Emiliano Mellino.
The union has 1,000 members and is focusing its efforts on high-profile strikes and employment tribunal cases. It is even using crowdfunding to pay its way. “When you’re a union of low-paid workers you have to be creative about how you fund your activities,” Mellino says. Our members pay around £6 a month so we rely on charitable trusts and foundations to fund our legal department. There’s lots of enthusiasm, and a lot of volunteers as well as members. It comes from the heart, what we do here. People are passionate about it.”
As well clarifying employment status, traditional unions such as the GMB want to see more enforcement action. “If there were some high-profile incidents investigated, taken to court and that resulted in prison sentences, that might help sharpen the mind a bit,” says Shears. “But the HSE and local authorities need to know about them in the first place, so it’s chicken and egg.”
In a statement, the HSE said it was “aware of the evolving nature of work. Some of this, such as contract arrangements, does not change what the employer must do. An employer has a duty to manage workplace risks and should treat all workers the same. This is an area we are following closely in order to identify and explore possible health and safety impacts.”
So while tribunal cases about employment rights continue to hit the headlines, and the government looks likely to reform rules on self-employment, platforms operating in the gig economy may need reminding of their duties under the Health and Safety at Work (HSW) Act, which is far more concerned with dutyholders than how they label those who work for them.
Spreading the net
Compared with employment law or tax, the definition of employee is very broad under the HSW Act, and every employer has a duty – as far as is reasonably practicable – to protect those not in their employment. As a result, even if not covered under s 2 – the duty of an employer to an employee – there is an obligation to non-employees under s 3. Davies notes that even companies such as Sports Direct that operate zero-hours contracts will have that s 3 duty for anyone affected by their work.
“If new employment patterns deny workers recourse to compensation when harmed at work, then that burden will be pushed back on the state and inevitably the state will be forced to react,” she says.
Ultimately, says Davies, as the system tries to catch up with the gig economy, the courts will play an increasingly important role in clarifying both safety and health responsibilities and employment rights.
“The courts will have to move with the times to reflect the way in which work is moving away from the traditional employer/employee relationship to ensure that companies are not absolving themselves of their basic obligations in relation to safety,” she concludes.