By Fraser Barnstaple, Underwriter at Temple Legal Protection
By Fraser Barnstaple, Underwriter at Legal Futures Associate Temple Legal Protection
The gig economy and zero-hour contracts have been growing in significance and scale in recent years. However, they raise major issues concerning levels of worker protection in terms of working time. Much labour law literature covering working time focuses on overworking, however, this article seeks to problematise an issue more specific to gig economy workers and workers on zero-hour contracts. Namely, unstable working hours.
The following discussion will begin by outlining the rise of the gig economy and the importance of stable working hours, before going on to explain how the law has not countered this rise with adequate protections.
The dangers and rise of the gig economy
By unstable hours, this article means working hours that are unguaranteed and also subject to frequent change. In research conducted, two primary dangers of unstable working hours were identified.
- One is household economic insecurity because varied hours leads to volatility in pay, which in turn leads to financial stress.
- Additionally, unstable hours create a work-life conflict because it is far harder to plan non-working life around work, which in turn leads a worsening of health and wellbeing.
The gig economy is growing on a tremendous scale, with the gross volume of gig transactions estimated to reach $455B by 2023. It covers many industries, and well-known market players include Uber, Airbnb and Amazon Flex.
However, gig economy workers work only work when the opportunity or ‘gig’ presents itself. They are often subject to unstable working hours, with work and therefore pay being unguaranteed. Therefore, unstable working hours is now the ‘new set of concerns’ on working time.
The response from the law
The courts have made progress relating to general working time rights for gig economy workers. For example, the Supreme Court in Uber BV v Aslam recently confirmed that Uber drivers are ‘workers’ rather than self-employed for the purposes of the definition contained in Working Time Regulations 1998 [WTR], Reg 2(1), which critically secured them a higher tier of rights. However, the WTRs aimed to ‘protect workers ‘against the dangers of exhaustion… [and] also against the dangers of repetitive and monotonous work’.
The focus of the WTRs is not on unstable working hours and it therefore fails to protect many interests of gig economy workers. Therefore, the value of the Uber judgement may be more in sentiment than in substance when it comes to unstable working hours because it shows the courts taking an inclusive approach towards the gig economy and working time.
However, the higher tier of rights in the WTRs do not focus on unstable hours. Therefore, despite the Uber judgement, the situation for gig economy workers with unstable working hours remains bleak.
The courts have had the opportunity to broaden the benefits of the WTRs concerning the meaning of ‘working’, rather than being ‘on call’ for the purposes of WTR, Reg 4(1). The reality is that although being ‘on call’ is not time spent working, it cannot be considered free time because workers must be readily available to work.
The courts established some narrow instances where one is ‘working’ rather than ‘on call’ but unless these narrow exceptions apply, workers will not be working for the purposes of the WTR. This encourages employers to keep their workers ‘on call’ which damages their work-life balance.
There is also the rise of zero-hour contracts. 1.8 million such contracts were recently recorded. Davidov emphasises that ‘contracts of employment involve an exchange of security for subordination… employees normally get more than an hourly compensation from their employers; they get a measure of security’.
However, in a zero-hour contract, employees do not get this measure of security because hours are unguaranteed and unpredictable. This exploits the power imbalances between employee and employer within the contract of employment.
Too much of the current law’s focus has been on overworking, rather than the emerging danger of unstable working hours under zero-hour contracts.
The future and conclusion
The future of the law on working time must be briefly considered given the substantial influence EU Law has had on it. With the UK no longer a member of the EU, the directly effective provisions have ceased to be so, and the WTRs ‘have always been viewed as foreign, and as imposing bizarre unintended consequences on employers’.
Therefore, the WTRs could be a candidate for repeal in coming years and, at the very least, it is incredibly unlikely there will be major additions soon in favour of unstable working hour protection.
In conclusion, the rise of the gig economy and zero-hour contracts has exposed a weakness in the law on working time. Unstable working hours is an issue that is growing issue because of these rising business strategies, and the law is yet to catch up. However, with the lack of political appetitive to improve matters after Brexit, it is unlikely there will be strives for improvement to the law in the near future.
If you would like to discuss any points raised in this article please email fraser.barnstaple@temple-legal.co.uk
