Collective Action in the Digital Reality: the Case of Platform‐Based Workers

Published date01 September 2021
AuthorTammy Katsabian
Date01 September 2021
DOIhttp://doi.org/10.1111/1468-2230.12635
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Modern Law Review
DOI:10.1111/1468-2230.12635
Collective Action in the Digital Reality: the Case of
Platform-Based Workers
Tammy Katsabian
The article explores the challenges of collective action in the digital reality and focuses on the
eorts of platform-based workers to unionise and their legal right to do so in accordance with
UK law. Using sociological scholarship, the article elaborates on the emergence of exibility
and individualisation in the digital reality, in particular in platfor m-based work, and on the
way it hinders the creation of collective action.The article then descr ibes how platform-based
workers currently organise themselves.It demonstrates how these current collective actions are
characterised by the same individualisation and exibility typifying the digital reality and why
they do not enjoy the protection of the law.Based on this reality, the article proposes making
several accommodations to the right to unionise for platform-based workers, by adjusting some
of the Trade Unionand Labour Relations (Consolidation) Act 1992 clauses, thus enabling some
platform-based workers to enjoy its protection.
INTRODUCTION
In February 2019, Hermes Parcelnet Ltd (Hermes) signed a pioneering agree-
ment with the GMB Union. The agreement enables Hermes’ self-employed
drivers to enjoy the representation of the GMB and to have a limited number
of basic labour rights, including holiday pay and minimum pay rates.1As part
of the agreement, Hermes couriers can decide whether to be considered self-
employed or ‘self-employed plus’ – a new status that aords couriers several
benets, including the right to be represented by a union. This was the rst
and only time that a UK gig company has allowed its supposedly self-employed
workers to be represented by a trade union.
Postdoctoral Fellow,The Labor and Work-lifeProgram, Harvard LawSchool (recipient of Fulbr ight-
ISEF fellowship and Rothschild fellowship).I would like to convey my deep gratitude to my super-
visor,Guy Davidov,for his devoted guidance, for many helpful discussions and suggestions and for his
constant support. I would also like to thank Guy Mundlak, Einat Albin,Faina Milman-Sivan,Alan
Bogg,Virg inia Mantouvalou, Miriam A. Cher ry,and Benjamin I. Sachs for their useful comments on
earlier drafts of this article. Finally,I would like to thank the anonymous reviewers for their careful
reading and insightful comments and suggestions.
1 See the ocial statement of the GMB Union at https://www.gmb.org.uk/news/hermes-gmb
-groundbreaking-gig-economy-deal (All URLs were last accessed on 11April 2021). See also
J. Cox, ‘Hermes is Now Delivering on Workers’ Rights. Is the Gig Economy changing?’
The Guardian 5 February 2019 at https://www.theguardian.com/commentisfree/2019/feb/05/
hermes-workers-rights-gig-economy-wages-holiday-pay-uber.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited. (2021) 84(5) MLR 1005–1040
Collective Action in the Digital Reality
The agreement between Hermes and the GMB Union was signed a few
months after a group of 65 Hermes couriers won their claim to be considered
as ‘workers’ instead of independent contractors.2Since the court’s decision was
supposedly limited to the 65 plaintis, by signing the collective agreement,
Hermes was able to avoid the ruling with respect to its other couriers, and
give them the status of ‘self-employed plus’ only, instead of ‘workers’. It will
be interesting to see whether other similar companies, which currently view
their workers as independent contractors, will follow Her mes’ tactic. This
question is particularly timely in light of the recent Supreme Court ruling,
according to which 25 Uber drivers in London should also be considered
workers and not independent contractors.3Uber is well-known for its ‘creative’
ways to avoid courts’ rulings regarding its drivers’ status,4and it will not be
surprising if Uber also decides to reach a similar agreement with its other
drivers.
Two years have passed since the agreement between Hermes and the GMB
Union was signed, and it is still not clear whether it protects the couriers’ ba-
sic rights.5The actual status of most of the drivers ultimately seems to have
remained the same, and most of them are simply dened as ‘self-employed’.6
Moreover, it is doubtful whether the new agreement really enables the ‘self-
employed plus’ to enjoy their collective rights. Since the ag reement refers to
the individual right of each courier to negotiate her pay separately from the
other workers, one meaningful component of collective rights collectively ne-
gotiating salaries on behalf of all workers – appears to be deliberately missing
from this agreement.
The agreement between Hermes and the GMB Union implicitly deals
with two important and related questions currently engaging the labour
2Leyland and others vHermes Parcelnet Ltd 1800575/2017 (ET).
3Uber BV and others vAslam and others 2019/0029 UKSC, 19 February 2021.
4 See for example in the US, A. Marshall, ‘Uber Changes Its Rules, and Dr ivers Adjust
Their Strategies’ Wired 18 Februar y 2020 at https://www.wired.com/story/uber-changes-
rules-drivers-adjust-strategies/; F. Siddiqui, ‘Uber’s Secret Project to Bolster its Case against
AB5, California’s Gig-Worker Law’ Washington Post 6 January 2020 at https://www.
washingtonpost.com/technology/2020/01/06/ubers-secret-project-bolster-its-case-against-ab-
californias-gig-worker-law/
Note that following the Supreme Cour t’s decision, in March 2021, Khosrowshahi announced
that Uber will treat its UK drivers as workers and not as independent contractors. However,
Khosrowshahi indicated that Uber will not follow the SupremeCour t’s decision with regard to
the question of working time and will pay its drivers only when they drive a passenger (and not
when they turn on the app and start driving) –see the announcement of Dara Khosrowshahi
at the Evening Standards from March 17,2021 “Uber chief executive Dara Khosrowshahi says
‘we’re turning the page on driver rights’” https://www.standard.co.uk/comment/comment/
uber-chief-executive-dara-khosrowhahi-dr ivers-rights- turning-page-b924529.html
5 This is since the exact details of this agreement remained condential, see M.Freedland and H.
Dhorajiwala, ‘UK Response to New Trade Union Strategies for New Forms of Employment’
(2019) 10 ELLJ 281, 288.
6 As can be learned from Hermes’s website at https://beacourier.co.uk/how-it-works/.
1006 © 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.
(2021) 84(5) MLR 1005–1040
Tammy Katsabian
law academic community7and the UK government:8What is the legal sta-
tus of platform-based workers – workers or self-employed? And to which
labour rights should they be entitled? The Hermes agreement bypasses the
initial question of status by going directly to one aspect of the second question:
determining the right of platfor m-based workers to unionise.However, the ac-
tual scope and meaning of this right are very limited.
As will be shown throughout this article,many dilemmas surround the r ight
of platform-based workers to unionise. This article contributes to this discus-
sion and explores the topic against the specic background of the digital age,9
with all the new opportunities and challenges it has brought to the labour eld.
In doing so, the article uses sociological and internet scholarship to emphasise
the role of exibility and individualisation as leading norms in the digital age,
specically in relation to platform-based work. In this way,the article explores
how platform-based work often enables workers to exibly choose whether and
when to work.This exibility per mits platform companies to treat their work-
ers as self-employed. Platform-based work also isolates workers from one an-
other, thereby painting each worker as an individual entrepreneur. Given these
circumstances, platform-based workers nd it dicult to formally unionise. As
a result, they often unionise in non-formal ways, by using social media sites.
However, the concepts of exibility and individualisation are also present in
these non-formal ways of unionisation. Social media sites are less organised and
do not require face-to-face communication or strong commitments between
the par ties. Flexibility and individualisation,therefore, also render it dicult to
establish a stable alternative organisation of platform-based workers.
Clarifying this uniqueness of exibility and individualisation in the context
of platform-based workers is necessary for several reasons.First,this knowledge
can shed light on the unique diculties that surround freedom of association
for platform-based workers, the ways in which these workers eventually or-
ganise themselves, and the shortcomings of these forms of organisation. More
importantly,exploring exibility and individualisation in the digital age can lead
to a tailored solution to the question of freedom of association for platform-
based workers, one which is adjusted to the concrete conditions of workers
who conduct their work through the internet.
7 For comparative scholarship see J. Prassl, Humans as Service (Oxford: OUP,2018); O.Lobel, ‘The
Law of the Platform’ (2016) 101 Minn L Rev 87; V. De Stefano, ‘The Rise of the Just-In-
Time Workforce:On-Demand Work,Crowdwork and Labour Protection in the Gig-Economy’
(2016) 37 Comp Lab L & Pol’y J 471;B.Rogers, ‘Employment Rights in the Platform Economy:
Getting Back to Basics’ (2016) 10 Harv L & Pol’y Rev 479; M. Cherry, ‘Workingfor (Virtually)
Minimum Wage: Applying the Fair Labor Standards Act in Cyberspace’ (2008) 60 Ala L Rev
1077.
8 See for instance J.Kenner, ‘Uber Drivers are“Workers”– The Expanding Scope of the ‘Worker’
Concept in the UK’s Gig Economy’in J. Kenner,I. Florczak and M. Otto (eds),Precarious Work:
The Challenge for Labour Law in Europe (Cheltenham: Edward Elgar, 2019) ch 11.
9 The digital age began in the mid-20th century, when computers became ‘the central nervous
system of global production network’.Its emergence – particularly the emergence of the internet
in the 90s – has brought new norms to our working livesand changed the daily routines of many
workers.See K.Stone, From Widgets to Digits (Cambridge: CUP,2004) 5; J. Abbate, Inventing the
Internet (Cambridge, MA: MIT Press, 2000) Introduction.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.
(2021) 84(5) MLR 1005–1040 1007

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