Doing Business Right Blog

Editor's note: Samuel Brobby graduated from Maastricht University's Globalisation and Law LLM specialising in Human Rights in September 2020. A special interest in HRDD carries his research through various topics such as: the intersection between AI and HRDD, the French Devoir de Vigilance or mHRDD at the EU level. Since April 2021 he has joined the Asser Institute as a research intern for the Doing Business Right project.

The recent surge in developments and debate surrounding Artificial Intelligence (AI) have been business centric, naturally so. The conversation has long been centred on the possible gains “digitally conscious” companies can recoup from their sizeable investments in the various forms this technology can take. The ink continues to flow as numerous articles are released daily; debating between the ultimate power of artificial intelligence (and topical subsets like machine learning) on the one hand, versus the comparatively more philistinish views regarding what these technologies can offer on the other. Our objective here is not to pick a side on the AI debate. Rather, we would like to explore the Business & Human Rights implications of the development of AI and, in particular its intersection with the human rights due diligence (HRDD) processes enshrined in the UN Guiding Principles on Business and Human Rights and subsequent declinations. How compatible is AI with HRDD obligations? Where does AI fit into the HRDD process? Can AI be used as a tool to further HRDD obligations? Can the HRDD process, in return, have an effect on the elaboration and progress of AI and its use in transnational business? And, to which extent will the roll out of AI be affected by HRDD obligations? These are all questions we hope to tackle in this blog.

In short, it seems two distinct shifts are occurring, rather opportunely, in close time frames. The impending mass adoption of AI in transnational business will have strong consequences for the state of Human Rights. This adoption is not only substantiated by an uptick of AI in business, but also in policy documents produced or endorsed by leading institutions such as the ILO or the OECD for instance. Inversely, we must consider that HRDD obligations elaborated by the BHR community will also have strong implications for the development and roll out of AI. These two transformations will interact increasingly as their positions are consolidated. It is these interactions that we wish to analyse in the two parts of this article. Namely, the emergence of Artificial intelligence as a tool to shape and further HRDD obligations (1) and the emergence of HRDD as a process to shape the development of AI (2). More...

On 27 February 2019, in a 7-1 decision, the US Supreme Court made an end to the absolute immunity from suit that international organisations (IOs) had consistently enjoyed in US courts. The decision realigns the immunity regime for IOs with that for foreign states, which leaves the opportunity to sue organisations such as the International Finance Corporation (IFC) when they engage in commercial activities. In a flare of enthusiasm among academics and (human rights) activists, the decision was immediately granted a landmark status and marked as a turning point in the long history of impunity for social, ecological and human harm caused by the activities of IOs. This Doing Business Right Talk will summarise the reasoning in the decision and explore the foreseeable effects on the legal accountability of IOs, and international financial institutions in particular. The most immediate effect, in that sense, might not be located on the avenue of adjudication, but in the various accountability mechanisms that have been created within IOs themselves.

Dimitri van den Meerssche is a researcher in the Dispute Settlement and Adjudication strand at the T.M.C. Asser Instituut. His research reflects on the law of international organisations, international legal practices and technologies of global governance. This work is inspired by insights from science and technology studies, performativity theory and actor-network theory. Dimitri is currently finalising his doctoral dissertation at the European University Institute, which he expects to defend in winter 2019. His dissertation is entitled “The World Bank’s Lawyers – An Inquiry into the Life of Law as Institutional Practice”. In the context of this dissertation, Dimitri has worked for three months at the World Bank Legal Vice-Presidency and spent one semester as visiting doctoral researcher at the London School of Economics.

When: Wednesday 24 April 2019 at 16:00

Where: Asser Institute in The Hague

Register Here

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

Introduction

This report compiles all relevant news, events and materials on Doing Business Right based on the coverage provided on our twitter feed @DoinBizRight and on various websites. You are invited to contribute to this compilation via the comments section below, feel free to add links to important cases, documents and articles we may have overlooked.

The Headlines

German Development Ministry drafts mandatory human rights due diligence

It was reported on 10 February 2019 that the German Federal Ministry of Economic Cooperation and Development has drafted legislation (unpublished) on mandatory human rights due diligence for German companies. It is reported that the law will apply to companies with over 250 employees and more than €40 million in annual sales. The draft legislation targets, inter alia, the agriculture, energy, mining, textile, leather and electronics production sectors. Companies that fall within the scope of the legislation will be required to undertake internal risk assessments to identify where human rights risks lie in their supply chains. Companies would also be required to have a Compliance Officer to ensure compliance with due diligence requirements. The Labor Inspectorate, the Federal Institute for Occupational Safety and Health and the Human Rights Commissioner of the Federal Government would be responsible for enforcing the legislation, with penalties for non-compliance of up to €5 million (as well as imprisonment and exclusion from public procurement in Germany).

Kiobel case heard in the Netherlands

On 12 February 2019, the Dutch courts heard a lawsuit involving Esther Kiobel and three other women against Shell. The plaintiffs allege that Shell was complicity in the 1995 killings of their husbands by Nigeria’s military. The husbands were Ogoni activists that were part of the mass protests against oil pollution in Nigeria’s Ogoniland. The judgment is expected to be handed down in May 2019. Read more here. More...

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands and an intern with the Doing Business Right project at the Asser Institute. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

Introduction

Editor’s note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.

The 21^st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played. More...

The headline of the New York Times on 24 April summed it up: ‘Supreme Court Bars Human Rights Suits Against Foreign Corporations’. The Jesner decision, released earlier that day by the U.S. Supreme Court, triggered a tremor of indignation in the human rights movement given the immunity it conferred to foreign corporations violating human rights against suits under the Alien Tort Statute, and led to a flood of legal and academic commentaries online. This panel discussion, organised with the support of the Netherlands Network of Human Rights Research, will address various aspects of the judgment. Its aim is to better understand the road travelled by American courts leading up to the decision with regard to the application of the Alien Tort Statute to corporations, to compare the decision with the position taken in other jurisdictions, and to discuss the ruling's potential broader impact on the direction taken by the business and human rights movement.

Where: T.M.C. Asser Instituut in The Hague

When: Thursday 24 May at 2:30 pm

Speakers:

Phillip Paiement (Tilburg University) - The Jesner case and the ATS: An American perspective

Lucas Roorda (Utrecht University) - A comparative perspective on Jesner and corporate liability for human rights violations

Nadia Bernaz (Wageningen University) - Lessons for the business and human rights movement after Jesner

Antoine Duval (Asser Institute) - Moderator

Register here!

Editor's Note: Marie Wilmet is a research intern in Public International Law at the Asser Institute. She recently graduated from Leiden University’s LL.M. in Public International Law. Her main fields of interest include international criminal law, humanitarian law and human rights law as well as counterterrorism.

The Alliance for Torture-Free Trade was launched on 18 September 2017, at the 72^nd Session of the United Nations (UN) General Assembly, by a common initiative of Argentina, the European Union (EU) and Mongolia. It aims at ending the trade in goods used to carry out the death penalty and torture. Indeed, even though torture is unlawful under public international law, these goods are currently available on the open market across the globe. By banning such tools from global trade, the Alliance hopes to reduce the possible human rights violations by complicating the perpetrators’ acquisition of the means to execute and torture people.

This initiative is part of a broader agenda both at the UN and EU level. It falls under the broader umbrella of UN projects such as the UN Guiding Principles for Business and Human Rights or the UN Global Compact. Moreover, the EU has tried in the recent years to strengthen the rule of law by conducting policies where trade and values are more interrelated. As the EU Trade Commissioner Cecilia Malmström stated, “human rights cannot be treated as an afterthought when it comes to trade”.

This blog will first retrace the origins of the Alliance by outlining the current factual and legal framework surrounding torture, the death penalty and related trade. Then, the Alliance and its ambitions will be analysed, along with the chances of its effective implementation. More...

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

Concerns about adverse human rights impacts related to FIFA's activities have intensified ever since its late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar respectively. However, until recently, the world's governing body of football had done little to eliminate these concerns, thereby encouraging human rights advocates to exercise their critical eye on FIFA.

In response to growing criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights''. At around the same time, Professor John Ruggie, the author of the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles') presented in his report 25 specific recommendations for FIFA on how to further embed respect for human rights across its global operations. While praising the decision to make a human rights commitment part of the organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in place enabling it to know and show that it respects human rights in practice''.[1]

With the 2018 World Cup in Russia less than a year away, the time is ripe to look at whether Ruggie's statement about FIFA's inability to respect human rights still holds true today. This blog outlines the most salient human rights risks related to FIFA's activities and offers a general overview of what the world's governing body of football did over the past twelve months to mitigate these risks. Information about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017. More...

Editor's note: Sara Martinetto is an intern at T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.

Since the adoption by the UN Human Rights Council of Resolution 26/9 in 2014, an Open-ended Intergovernmental Working Group (WG) is working on a binding Treaty capable of holding transnational corporations accountable for human rights abuses. Elaborating on the proposal presented by Ecuador and South Africa, the WG has been holding periodical sessions. In much trepidation for what is supposed to be the start of substantive negotiations – scheduled for October 23-27, 2017 – it is worth summarising and highlighting the struggles this new instrument is likely to encounter, and investigating whether (and how) such an agreement could foster transnational corporations’ (TNCs) human rights compliance. More...

Doing Business has been a (if not the) core concern for the post-WWII world order, leading up to contemporary economic globalisation and the ‘free’ movement of goods, capital and ideas across the globe. With our research project, and the launch of this companion blog, we aim to shift the focus towards Doing Business Right. Thanks to the financial crisis in 2008, there is growing awareness of the fact that Doing Business can lead to extremely adverse social and economic consequences. The trust in Doing Business as a cure-all to modernize, democratize, or civilize the world is fading. Moreover, the damaging externalities prompted by the operation of transnational economic activity are more and more visible. It has become harder, nowadays, to ignore the environmental and social consequences triggered elsewhere by our consumption patterns or by our reliance on certain energy industries. What does Doing Business Right mean? How does the law respond to the urge to do business right? What are the legal mechanisms used, or that could be used, to ensure that business is done in the right way? Can transnational business activity even be subjected to law in a globalized world?

This blog will offer an academic platform for scholars and practitioners interested in these questions. With your help we aim to investigate the multiple legal and regulatory constructs affecting transnational business conduct - ranging from public international law to internal corporate practices. We will do so by hosting in-depth case studies, but also more theoretical takes on the normative underpinnings of the idea of Doing Business Right. We aim to be inclusive in methodological terms, and believe that private and public, as well as national and international, legal (and...) scholars should come together to tackle a genuinely transnational phenomenon. Future posts will cover issues as diverse as national, EU, international, transnational regulations - including self-regulation, voluntary codes, and market-based regulatory instruments - applying to transnational business conduct. Case law from the CJEU, international tribunals (ICJ, arbitral tribunals) and national courts, as well as decisions from international organisations, national agencies (such as competition authorities) will be recurring objects of discussion and analysis. Yet, our perspective is not solely focused on the (traditional) law: management practices of companies and their effects will also be scrutinized.

This blog is thought as an open discursive space to engage and debate with a wide variety of actors and perspectives. We hope to get the attention of those who care about Doing Business Right, and to provide useful intellectual and legal weapons for their endeavours.

The Editors:

Antoine Duval is a Senior researcher at the Asser Institute since 2014. He holds a PhD from the European University Institute in Florence in which he scrutinized the interaction between EU law and the transnational private regulation of world sport, the lex sportiva. His research is mainly focused on transnational legal theory, international arbitration, and private regulation.

Enrico Partiti is researcher at the Asser Institute since 2017. He holds a PhD from the University of Amsterdam on private standards for sustainability. His research interest lies at the intersection of EU and international economic law on the one hand, and private regulation for sustainability on the other. He studies the interactions and reciprocal influence between transnational public and private norms, and how they determine and impact on social and environmental sustainability in global value chains.

Editor’s Note: Elisa Chiaro is a legal consultant focussing on Business and Human Rights and International Criminal Law. In 2016 she completed an LL.M. at SOAS, University of London. Before that she worked for five years as international corporate lawyer both in Italy and UK. She is admitted to the Bar in Italy.

1. Introduction

In current discourse, the most pressing issues concerning human rights and business are often associated with the developing countries to which manufacturing is outsourced. However, the “western world” also faces new challenges as far as workers’ rights are concerned.

It is cheap and convenient for people to book a car ride or order their favourite takeaway meal at a few swipes of their smartphone. App-based service companies are thus very popular among consumers – and are consequently flourishing. Conversely, some doubts have been cast on the fairness of the working conditions of people contracted by these companies. A central issue in this respect relates to the status of their workers, who on paper are self-employed, but in reality are subject to the control of the company, a condition which clashes with being independent. This post aims firstly to analyse the labour conditions of gig economy workers in Europe, with a focus on some of the main service platforms, namely Uber, Deliveroo, Foodora, and Hermes Parcels: the majority of these companies, Uber in particular, are transnational, operating in many national markets and adopting the same business model based on flexible work and lack of security for workers in each market. Secondly, it will scrutinise how National and European institutions and courts are augmenting gig economy workers’ conditions for the better. The issue is crucial in the UK, especially following September’s decision by Transport of London (“TFL”) to reject Uber’s application for a new London license, but legal disputes have also started in other countries (in, among others, the UK, Italy and the USA). The UK Parliament is also discussing the matter, and the EU Commission has started a round table with trade unions and employers to find new solutions to address the issue.

2. Gig economy: flexibility vs security

The development of new digital technologies, in particular ride-hailing and food delivery apps easily accessible to everyone who possesses a smartphone, has undoubtedly changed our lives. However this phenomenon also has some downsides which are clearly visible in the context of the gig economy. Despite the fact that, from the consumer’s point of view, these services are efficient (both in terms of time and cost) and convenient, they have created a new category of so-called workers “on tap”, as the The Economist labels them.[1] The term “gig work” was first used at the beginning of the 20^th century for jazz musicians who got their wage (“gig”) every night after their performance. In 2009, the expression “gig economy” was adopted to describe those who, during the financial crisis, started to engage in numerous part-time jobs.[2]

A key company in the gig economy is Uber. Founded in San Francisco in 2009, it is a ride-hailing app, and now operates in 633 cities worldwide. The European subsidiary of the American company is incorporated in The Netherlands. The company maintains that in London, a focal hub of its business, it has around 3.5 million users (this number refers to anyone who has used the service in London in the period July-September 2017). Another important actor is Roofoods Ltd, operating as Deliveroo, a London-based food-delivery company founded in 2013 transporting restaurant orders by bicycle, motorcycle or car couriers. It operates in 12 countries and (as of September 2016) provides jobs to around 20,000 people.[3] Foodora, a German company similar to Deliveroo, is involved in food delivery in more than 260 cities worldwide and employs around 22,000 people. Other significant companies in this space include parcel delivery companies such as Hermes. The company runs a UK logistics and delivery business, with around 2,800 employees and a network of 10,500 self-employed delivery couriers who work on a day-to-day basis.[4]

These companies certainly appear to be creating jobs: in London around 40,000 drivers work for Uber and, in 2015, Uber cars in New York outnumbered traditional yellow cabs.[5] Moreover, most of the services offered do not imply extra costs; on the contrary, using these services can be cheaper than procuring them in more traditional and longer-established ways.

The motto of most of the companies mentioned above is “flexibility”, which is closely intertwined with the fact that all of the people that drive or ride for them are self-employed. However, where for some people being self-employed is a free and conscious choice motivated by “autonomy and flexibility”, for others it constitutes a “necessary choice” because they do not have another “traditional” job or, alternatively, because their traditional job’s income is insufficient.[6] Clearly flexibility is not negative tout-court, unless it is one-sided. It might be positive insofar as it allows for the creation of potential new job opportunities benefiting more people, but it might also become problematic if the model is adopted just to cut costs, and if the level of control the employer exerts over its workers becomes too great. As stated in the July 2017 Taylor Review of Modern Working Practices (“Taylor Review”), drafted by an independent panel of experts upon the UK Government’s request, “[b]eing able to work when you want is a good thing; not knowing whether you have work from one day to the next when you have bills to pay is not.”[7] The crucial point goes as follows: describing the employment status of gig economy workers as self-employed, while in reality their freedom is very limited, will deprive them of some fundamental labour rights, such as sick pay, holiday leave, and entitlement to the national minimum wage, among other rights.

3. The UK approach: TFL decision and UK Parliament enquiry

In the UK the debate surrounding on-demand workers’ rights is very lively, and reached its peak with September’s decision by TFL, openly supported by London Mayor Sadiq Khan, not to renew Uber’s operating licence in London. The decision was justified due to Uber’s “lack of corporate responsibility” but it focused specifically on issues linked to passenger safety.[8] However Sadiq Khan in his article published in The Guardian, supporting TFL’s decision, specifically stated that the “regulatory environment is critical in protecting Londoners’ safety, maintaining workplace standards for drivers […].”[9]The company, following the apology of the Chief executive Dara Khosrowshahi for its past actions, appealed against the decision and in any case will continue operating until the appeal decision is issued,[10] as provided for in The Private Hire Vehicles (London) Act 1998. Many criticisms were raised against TFL’s decision: on one side by consumers (a petition to save Uber was set up and in a few days obtained more than 800,000 signatures) and by some drivers on the other. They claimed that, instead of solving workers’ problems, the decision harmed Uber drivers and was just aimed at protecting Black cab drivers, the majority of which are allegedly white and English.[11]

The conditions of gig economy workers, and in particular Uber’s drivers, were analysed back in December 2016 in a report by MP Frank Field, titled “Sweated Labour: Uber and the ‘gig economy’” (based on submissions from 83 private hire drivers, the majority of whom worked for Uber). It concluded that despite being self-employed, “[d]rivers cannot set their own fares, or choose which jobs to undertake, for example. Many are totally dependent on Uber for their income and they all must meet certain conditions to continue receiving work.” Moreover the report stated that drivers are taking home around £2 per hour – less than a third of the national living wage – due primarily to the costs they have to bear, namely a vehicle that meets Uber standards, plus refuelling and maintaining it. Interestingly, one of the recommendations listed in the report was towards TFL, which was called on to consider the abovementioned elements of the report when it came to renewing Uber’s operating licence.

Even if some positive results have been achieved (for example, in April 2017 Uber declared that its drivers could sign up to a security scheme with the aim to cover them in the event they were unable to work), working conditions are still inadequate. This is clear from the findings of the UK House of Commons Work and Pension Committee (“WPC”), which more recently scrutinised issues connected to the gig economy. The WPC held that, instead of flexibility, workers suffered “low pay, inflexibility in working times, long hours, instability, and difficulties in taking time off (such as for a holiday or for sick leave).”[12] Specifically referring to the Deliveroo contract, the WPC underlined how the company explicitly denied their workers the right to present any claim to challenge their employment status (Clause 2.2).[13] Moreover Clause 2.3 of the contract states that if, despite this Clause 2.2, the worker presents any claim against the company, he/she “[…] undertake[s] to indemnify and keep indemnified Deliveroo against costs (including legal costs) and expenses that it incurs in connection with those proceedings, and [the worker] agree[s] that Deliveroo may set off any sum owed to [the worker] against any damages, compensation, costs or other sum that may be awarded to [the worker] in those proceedings.”

Finally, in October 2017 the representatives of Deliveroo, Uber and Hermes Parcels appeared before the UK Parliament Business, Energy and Industrial Strategy Committee (“BEIS Committee”) to give evidence and discuss, among other things, the Taylor Review. The three representatives of, respectively, Deliveroo, Hermes and Uber, argued that flexibility was crucial and benefitted riders and drivers. Specifically, Deliveroo’s UK managing director claimed that at least 50 per cent of their riders were students carrying out paid work alongside other activities, and further stated that the additional labour rights for workers (if self-employed contractors were to be recognised as employed) would lead to a company cost increase of around £1 per hour of rider/driver time. Hermes director of legal and public affairs asserted that the recognition of workers’ employment status would cost the company around £58.8 million (given holiday pay, sick pay and National Insurance contributions).[14]

4. The judicial response

So far many cases against Uber have been brought before national courts on unfair competition claims: for instance in Italy, UberPop (the equivalent of UberX in the UK, one of the services offered by Uber, which connects unlicensed drivers with consumers) was banned for unfair competition in 2015 by the Milan Tribunal (in two decisions: on 25 May and confirmed on 2 July), decisions also upheld by the Turin Tribunal in March 2017, while in May 2017 the Rome Tribunal lifted the ban on UberBlack (Chauffeur-driven service), which it had previously imposed in April 2017. It is also worth noting that some cases relating to Uber have been brought before the CJEU. In the case C-434/15 (Asociación Profesional Elite Taxi v. Uber System Spain SL), despite the fact that the case was brought before the Spanish Court to cease Uber unfair competition acts, the Advocate General (“AG”) Szpunar’s Opinion of 11 May 2017 dealt also with labour law issues. The AG held that Uber could not be treated as a “mere intermediary between drivers and passengers. Drivers who work on the Uber Platform do not pursue and independent activity that exists independently of the platform.” (para. 56). In the case C-320/16 (Uber France SAS) the AG reaffirmed the same position in his Opinion of 4 July 2017 (paras. 16-17).

More interestingly in relation to the issues dealt with in this post are the legal disputes that gig economy companies have to face following challenges based on workers’ labour rights.

Hermes is facing, on the one hand, an on-going dispute over employment status of some of its self-employed drivers, which should lead to a judgment at the beginning of 2018, and, on the other, is under the scrutiny of the UK Tax Authority (HRMC) on the employment status of the self-employed couriers who work for the company.

In October 2016, the London Employment Tribunal (“ET”) found that Uber drivers, when (i) the app is switched on, (ii) they are in the territory in which they are authorised to work, and (iii) they are willing/able to accept assignements, are working for Uber under a “worker” contract (para 86). The judges expressed their scepticism towards Uber’s claims to the contrary (para 87), stating that “[t]he notion that Uber in London is a mosaic of 30,000 small businesses linked by a common ‘platform’ is to our mind faintly ridiculous” (para 90). Moreover the tribunal held that the Uber driver’s right to be paid “does not depend on his achieving set unit of production, […] the Uber driver performs ‘unmeasured work’. The hours of the unmeasured work in any pay reference period are to be computed in accordance with NMWR [The National Minimum Wage Regulations 2015], reg. 45. In the ordinary case, the relevant hours are the ‘hours worked’ […].” (paras. 126-127). Uber has appealed this judgment and on 10 November 2017 the Employment Appeal Tribunal (“EAT”) dismissed the appeal confirming the ET’s findings. Uber declared that it will appeal the EAT decision.[15]

Also crucial was the February 2017 UK Court of Appeal decision on ‘self-employed’ plumbers, who, having worked for several years exclusively for Pimlico Plumbers, were entitled to workers’ rights. The case is now before the Supreme Court. Legal disputes are taking place also in other European Countries: early this month (October 2017) six Foodora riders took the company to the Turin Tribunal (Employment Section) in Italy, arguing that they were not self-employed and were instead entitled to proper workers’ rights. These riders were fired following their protests against bad working conditions, in particular low salary.[16]

In the USA, litigation is helping the cause of gig economy workers. A 2015 Seattle City Council legislation (which allows drivers of app-based company such as Uber, to form unions and to have collective representation over fair working conditions) has been challenged twice in August this year: firstly by the US Chambers of Commerce, of which Uber is member, because it would stifle competition, and, more recently, by a group of 11 drivers, on the ground that it is against federal labour law and the right to free association. In both cases the US District Judge dismissed the challenges, but the parties declared they would appeal.[17] Moreover, a North Carolina Federal Court granted, in July this year, preliminary class action status to a minimum wage and overtime lawsuit filed by drivers working for Uber under the Fair Labour Standards Act. The main aim of the class-action is to challenge Uber misclassification of drivers as independent contractors. Around 18,000 drivers who opted out of arbitration are eligible to join the class-action.[18]

5. The EU approach

The gig economy workers’ quest for rights reaches beyond national law. The EU Commission declared on 25 September that, in order to modernize legislation on employment contracts, it has started consultation with trade unions along with employers. The EU Commission is also moving forward the so-called European Pillar of Social Rights (“EPSR”), which consists of 20 key principles relating to equal opportunities and access to the labour market, fair working conditions, and social protection and inclusion.

One of the concrete aims of the EU Commission is to extend the scope of the directive on employment contracts (Council Directive 91/533/ECC, also known as the Written Statement Directive, which sets an obligation on the employer to provide, within two months from commencement, essential written information about the contract or employment relationship) to on-demand, voucher-based and platform workers.[19] Moreover the EU Commission would propose a new rule, which could “establish some basic rights such as the right to a degree of predictability of work for workers with very flexible contracts or the right to a maximum duration of a probation period.”[20] It has been noted that, on the one hand, the Commission proposal might raise costs for companies like Uber but, on the other, the protection for workers might not be applicable to self-employed workers, creating “a loophole for employers such as Uber and Deliveroo.”[21]

6. Concluding remarks

The technology-driven economy has brought numerous advantages to our everyday lives. It is however crucial that these advantages for consumers are not to the detriment of workers involved in the service offered. Similarly, flexibility at work is not tout-court a negative aspect, if independence is a genuine choice rather than an imposition by the employer, and provided a certain floor of rights is guaranteed. As we have seen, through litigation and action by major political stakeholders, new solutions are on their way and will hopefully bring fair and decent working conditions to people involved in the gig economy.

[1] The Economist, "Workers on Tap", 30 December 2014.

[2] Leslie Hook, "Year in a word: Gig economy" (The Financial Times, 29 December 2015).

[3] Sarah O’Connor, "When Your Boss is an Algorithm" (The Financial Times, 8 September 2016).

[4] Business, Energy and Industrial Strategy Committee, Meeting (10 October 2017).

[5] Cecilia Saixue Watt, "‘There’s no future for taxis': New York yellow cab drivers drowning in debt" (The Guardian, 20 October 2017). See also BBC, "Uber cars outnumber yellow taxis in New York City", 19 March 2015.

[6] McKinsey Global Institute "Independent Work: Choice, Necessity, and the Gig Economy" (October 2016) p. 7-8.

[7] Matthew Taylor and others, "Good Work: The Taylor Review of Modern Working Practices" (July 2017), p. 42.

[8] Transport For London, "Notice 13/17: Licensing decision on Uber London Limited" (22 September 2017).

[9] Sadiq Khan, "Londoners’ safety must come first" (The Guardian, 22 September 2017).

[10] Gwyn Topham, "Uber Launches appeal against loss of London licence" (The Guardian, 13 October 2017).

[11] Katrin Bennhold, "London’s Uber Ban Raises Questions on Race and Immigration" (The New York Times, 2 October 2017).

[12] House of Commons, Work and Pensions Committee, "Self-employment and the gig economy" (1 May 2017) para 13.

[13] As far as the fist point is concerned, the Deliveroo representative held that, practically speaking, that is a clause that they would not enforce, However the Report points out that “[…] to an average worker with little or no understanding of employment law, the intended deterrent effect is clear.” See House of Commons, Work and Pensions Committee, "Self-employment and the gig economy" (1 May 2017) para17 and fn 15.

[14] Business, Energy and Industrial Strategy Committee, Meeting (10 October 2017).

[15] Sarah O’Connor and Aliya Ram, “Uber loses appeal in UK employment case” (The Financial Times, 10 November 2017).

[16] Federica Cravero, "Torino, sei rider fanno causa a Foodora: Eravamo dipendenti, licenziati illegalmente" (La Repubblica, 18 October 2017).

[17] Gene Johnson, "Federal Judge clears way for Seattle Lyft, Uber drivers to unionize" (The Seattle Times, 25 August 2017). See also Jeremy B White, "Judge dismisses lawsuit seeking to block law allowing Uber and Lyft drivers to form unions" (The Independent, 2 August 2017).

[18] David Streitfeld, "Uber Drivers Win Preliminary Class-Action Status in Labor Case" (The New York Times, 12 July 2017).

[19] EU Commission press release, "Moving forward on the European Pillar of Social Rights: Commission continues work on fair and predictable employment contracts", 25 September 2017.

[20] EU Commission Fact Sheet, "Commission continues work on fair and predictable employment contracts – Questions and Answers", 25 September 2017.

[21] "EU seeks more protection for Uber-style jobs", (Reuters, 24 September 2017).

Artificial Intelligence and Human Rights Due Diligence – Part 1. Integrating AI into the HRDD process - By Samuel Brobby

New Event! Human Rights and the Immunity of International Financial Institutions - Reflections on Jam v. IFC - 24 April - Asser Institute

Doing Business Right – Monthly Report – February 2018 - By Shamistha Selvaratnam

Doing Business Right – Monthly Report – October 2018 - By Shamistha Selvaratnam

Human Rights Protection and the FIFA World Cup: A Never-Ending Match? - By Daniela Heerdt

New Event! The Jesner ruling of the U.S. Supreme Court: The ‘end of the beginning’ for corporate liability under the Alien Tort Statute - 24 May at the Asser Institute in The Hague

Ending torture and the death penalty through trade policy? The ambitious promise of the Global Alliance for Torture-Free Trade - By Marie Wilmet

FIFA's Human Rights Agenda: Is the Game Beautiful Again? – By Tomáš Grell

Who is afraid of a binding treaty? Stumbling Blocks on the Accountability of Transnational Corporations by Sara Martinetto

Why Doing Business Right?

Doing Business Right Blog

Regulating the Gig Economy: A Workers’ Rights Perspective - By Elisa Chiaro

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