The tug of war between gig economy workers and their employers continues. The last round saw GMB, the union representing gig economy workers, their rights, and their benefits, take legal action against Uber and win. Now, the union has Bolt firmly in its sights. While the Supreme Court ruled in GMB’s favour last year and decided that Uber drivers are entitled to workers’ rights, could we see a different outcome a second time around?
The workers in the Uber case established that not only were they workers but working time began when they were logged onto the app, they were in their assigned territory, and were ready and willing to work. Part of the court’s reasoning was the dominance of Uber in the market, as the drivers were unable to credibly be at the disposal of other similar apps.
The judgment states that if there had been other apps then “the same analysis would not apply.” This might offer a ray of light to Bolt, as the commercial landscape is very different in 2022. Bolt may be able to leverage its own success and that of its competitors, including Uber itself, to argue that there are now credible alternatives so that the drivers are genuinely self-employed if they are logged into a multitude of apps during the same working period.
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So, despite the success of the Uber case, there is no guarantee that GMB will win any claim. Uber simply reinforces the point that the court will not take the wording of a contract at face value, but will consider the reality of the relationship between the parties. The key will be how much control Bolt exerts in reality over the service provided by its drivers, irrespective of possibly bogus rights of substitution.
If the court considers that the drivers in this instance do have significant control over their activities, not least because they can now credibly be available to various apps at the same time, then GMB’s claim could well fail.
Ultimately, the case will come down to the degree of control that Bolt has over its drivers’ day-to-day activity and benefits. If Bolt drivers can prove that the business has over-arching control over their hourly work, preventing them from pursuing alternative routes of employment, GMB could reign victorious.
Helena Rosenstein is a senior associate at Stevens and Bolton