The Platform Worker Predicament : Revisiting Labour Obligations of Online Intermediaries.

[By Tanvi Shetty]

The author is a student of O.P. Jindal Global University.

 

Globally speaking, the position maintained by online applications such as Uber with respect to their drivers is that they are independent third parties and the scope of their agreements with such drivers falls outside the purview of a standard employer-employee relationship. In holding so, the companies are able to navigate through their consumer and employer obligations. However, a recent consumer dispute case, Kavita Sharma v Uber India [“Kavita Sharma”] decided on August 25 2022 analysed liability of Uber India with respect to its drivers. While the judgement does not essentially deem the drivers as employees, it does introduce an aspect of agency by focusing on certain factors within the Uber ‘Terms & Conditions’ which helps expand on the larger discussion of rights of platform workers with respect to such intermediaries.

The Consumer Case

The complainant (Kavita Sharma) had booked a cab to the airport through the Uber Application on June 12, 2018. Pursuant to certain delays on the end of the driver, the complainant missed her flight. The complainant cited that the driver was unresponsive and caused unnecessary impediments by taking a route longer than the one stipulated by the mobile application itself. The result of the same was an inflated cab fare, showing an amount of Rs.702.54/- instead of Rs.563/- which was reflected on the Uber App at the time of booking. Aggrieved by the same, the complainant filed a consumer dispute against Uber India deeming them to be liable for the acts of the driver.

The global stance retained by platforms such as Uber is that they are merely an ‘intermediary’ and do not share an employee-employer relationship, thereby dodging liability for acts of their drivers who are termed as independent third-party partners. However, contrary to their stance, the consumer court in the present case imposed liability on Uber India for the actions of their driver citing that the ‘controlling authority’ is Uber India. The court delved into the ‘Terms & Conditions’ of the Uber application and analysed that even though the drivers are not employees of Uber, it is Uber India that manages and controls the application and fare prices and offers transportation and logistics services to the customers. Further, the drivers are mandated to act as agents and collect payments on behalf of Uber India for the services offered by Uber India.

In looking at the substance and form of transaction between the customer and Uber India, the consumer court held that the customer is paying Uber India for its services and not the driver itself. Subject to the above listed reasons, the consumer court held Uber India liable for the defective services provided by the driver thereby making the complainant entitled for compensation as well.

UK Judgement

Interestingly, a 2021 United Kingdom judgement (Uber BV and Ors v Aslam and Ors,[2021] UKSC 5) was cited by the complainant in her submissions to the consumer court which has gone ahead to establish drivers to be workers of Uber itself, eliminating the scope of debate on vicarious liability of Uber and other social security obligations that drivers are entitled to. The court in the judgement assessed the relationship between Uber London and its drivers to determine whether the drivers could be brought under the purview of a ‘worker’. The court’s rationale was centred around analysing the degree of subordination of drivers and the control Uber London had over their work. While the Uber model allows drivers to have a certain level of independence and autonomy, the drivers are bound and controlled by Uber terms every time they log into the application.

The court assessed how Uber regulates and monitors the details pertaining to the rides accepted or rejected by each driver. Aside from the fare prices being determined by Uber London, Uber London also holds the right to automatically log off the drivers from the application if they do not meet a specific rate of accepted rides[1]. Further, even though the vehicles were purchased by the drivers themselves, the vehicles were vetted by Uber London and the business of the drivers and use of the vehicles were reliant on the Uber application itself. The idea of “irreducible minimum of obligation” was re-visited in the judgement wherein courts are to look for a minimum obligation to do work[2]. The court tied this with the obligation of the drivers to maintain a certain rate of accepted rides to come to their conclusion that the drivers were in fact ‘workers’ under the UK Labour legislations.

Statutory Solutions and Lacunae

The Kavita Sharma case is a small step in the larger debate of liability of platforms such as Uber and rights of platform workers. While the case is centred around a consumer liability perspective of an intermediary service provider such as Uber, India is yet to streamline the labour laws surrounding platform workers.

The Code on Social Security 2020 [“Code”] has defined “platform work”[3] to be work centred around organisations or individuals accessing online platforms to access other individuals or organisations for a specific service or to solve a specific problem. The Code confers the central government[4] with jurisdiction to formulate social welfare and beneficial schemes such as that on accidental insurance, health/maternity benefit, life and disability cover, old age protection and education whereas vests the power with the state government[5] to frame schemes on matters such as provident fund, employment injury benefit, housing, skill upgradation of workers and others. Further, there is a registration process[6] for platform workers via an online portal on which platform workers between the age of 16 years to 60 years must mandatorily register.

The primary issue that arises with regards to platform workers is that the Code does not separate platform workers from gig workers and workers in the unorganised sector. While the three segments of work have been defined individually, the provisions pertaining to central and state government formulating schemes have been clubbed together. It must be understood that the nature of work associated with platforms such as Uber demand for specific schemes and legislations that incorporate the degree of control that such intermediaries have on the workers. Borrowing from the Uber London case itself, we see how the system is designed to monitor and supervise the working of each driver and the rides that they can accept or reject. Furthermore the Code does not elaborate on how the schemes that have been formulated must be implemented and what might be the employer’s obligations. The Code equates “employee” and “platform worker” on a different pedestal altogether and fails to specify on the rights of platform workers.

Conclusion

The Kavita Sharma judgement sheds light on the stance of the consumer court with regards to liability of intermediary service providers such as Uber, there is a need to legislatively rethink laws surrounding platform workers from a labour law lens. While the Code on Social Security is yet to be notified, there exists gaps within the same which need to be considered from the perspective of online applications such as Uber and their service agreements which contractually deem drivers as independent third parties. With India’s booming online markets, the need for platform workers’ right to social security benefits and labour legislations continues to grow.

[1] Uber BV and Ors v Aslam and Ors,[2021] UKSC 5),para 99

[2] Uber BV and Ors v Aslam and Ors,[2021] UKSC 5),para 129

[3] Section 2(60) of the Code

[4] Section 109(1) of the Code

[5] Section 109(2) of the Code

[6] Section 113 of the Code

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