As a bit of a peak behind the curtain, sometimes I record episodes of the podcast in advance and schedule them to go out. That is what I ended up doing this week for Uber v Aslam [2021] UKSC 5 because (excitingly!) I was busy moving into my new house.

Anyway the point is that a few days after the record, it quickly became out of date. Whereas in the podcast episode I speculate about what Uber’s next steps might be, the tech company has now come out and announced that its drivers will be classified as workers. This means that drivers will be paid (at least) the minimum wage and Uber will start making arrangements for other entitlements such as a pension scheme and holiday pay.

To the untrained eye this looks like the fruition of the victory that driver’s earned recently before the Supreme Court but all is not quite as it seems. We talk in the episode about how one of the key questions is what should be considered to be the time that the driver is working: is it purely the time that the driver actually has a passenger in the car or is it the period that they are logged on to the app and are willing and able to take fares? The Justices of the Supreme Court seemed to make it pretty clear that the answer was that the drivers are working as soon as they open the app even if there isn’t a passenger in the car with them. Uber, however, does not read the judgment that way and considers that drivers are only working when they have a passenger. This very slight tweak in the wording could potentially cost drivers a significant amount of  money; not only in terms of the number of hours for which they will be entitled to minimum wage but also in respect of compensation for time that they have been working in the past but not given full entitlements.

This means more legal action and that will be both costly and time-consuming for the drivers who are simply being denied what has already been decided to be rightly theirs. The court’s hands are mostly tied but the government could and should be doing more to uphold the ruling and bring about justice within the gig economy. The Business Secretary, Kwasi Kwarteng, has only spoken about the judgment in the broadest terms but his actions speak so much louder. Earlier this year he dismissed Matthew Taylor who was helping to devise at least some basic standards for employment within the gig economy. Meanwhile HMRC have a great range of powers when it comes to monitoring Uber’s liabilities with respect to back-pay but have failed to be pro-active at every step of the way.

This case is a perfect example of where, unfortunately, the legal and practical reality diverge. Legally the drivers are clearly on to a winner here and should be entitled to full worker’s rights in accordance with the judgment of the Supreme Court. However if you are a massive company that has the ear of a government and thinks being ‘pro-business’ means pushing the workforce to the brink of collapse then you can practically avoid or, at the very least, delay the legal consequences of your action for years and years.