In Uber v Aslam, decided in December 2018, the UK Court of Appeal has held that Uber drivers are ‘workers’ for the purposes of the national minimum wage and paid holidays. This constitutes a small step towards the goal of decent work for Uber drivers in London, and it is to be hoped that the Supreme Court will uphold the decision. However, in an article published in the Industrial Law Journal on 21 May 2019, FairWork co-investigators Sandra Fredman and Darcy du Toit point out that the decision underscores yet again the fragility of using the distinction between ‘workers’ and ‘independent contractors’ as the foundation for rights at work. They argue that ‘the distinction is especially unsuited for the large and growing number of workers whose working relationships cannot easily be characterized within the bipolar contractual model, but whose working lives are precarious and vulnerable to exploitation. It is precisely these workers who should be entitled to the benefit of basic employment rights.’ These strains are particularly acute for platform workers, where digital mediation makes it difficult to identify a traditional two-party employment relationship.
Yet employment rights remain largely restricted to those who can bring themselves within the traditional definition of a worker. Far too little attention is paid to the challenges of providing decent work for workers who fall outside this magic circle. In this respect, innovative solutions, going beyond the outdated dichotomy, are sorely needed. One such solution is the important initiative of the Fair Work project, which draws on the influence of publicity, reputation and consumer power to achieve decent work for platform workers. Our unique combination of social scientists and lawyers is opening the way to defining appropriate standards of decent work for workers in these complex, multi-facetted work relationships, with the challenge of transposing ratings into legally binding standards. Also crucial is our examination of the ways in which the different approaches need to complement each other to bring about real change.