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Apps, AI and the Gig Economy: Are employers sitting in the eye of a perfect storm?

Artificial intelligence has long been regarded as a spectre, looming in the wings of the workplace, so it was interesting to read recently that more than a quarter of workers in the UK now regard it as a very real threat to their own employment.

A study by Investors in People found that older workers in particular are concerned about how their job might be impacted by new technology. The Artificial Intelligence at Work: Perceptions & Attitudes report found that 30 per cent of men and 25 per cent of women believe AI will impact their role over the next two years.

We are certainly seeing the impact of this trepidation in employment law. Nerves have been jangled by the pace of change that has been precipitated by a new breed of ‘employer’. The likes of Uber, Deliveroo and Hermes represent everything that is new and different about the way we travel, eat and shop in 2018. They are also well known for their part in creating the gig economy, a role that has led them all to tribunal.

Thanks to apps and smartphones, we can order taxis, food and clothes with a click and track their journey to our front door. However, while we await further developments in AI, drone technology and driverless cars, we need people to make that journey happen. Many of these app-based companies have come about to offer an alternative to traditional employment models and in doing so they have come up against resistance from workers who feel exploited.

I have discussed before the argument that these companies could potentially be viewed as facilitators, having merely developed the technology that brings together a customer and a service provider. This concept has been blown out of the water by a series of tribunal hearings that have found in favour of these service providers, ruling that they are workers rather than being self-employed.

Another similar case in a slightly different sector was that of the Pimlico Plumbers, which saw Kent plumber Gary Smith win his supreme court claim for worker status and employment rights after his employer claimed that Mr Smith was self-employed and that Pimlico Plumbers was in fact his client.

These cases have put the brakes on the gig economy by highlighting the fact that a burgeoning majority of workers are ill at ease with the sacrifices they are expected to make for their new found flexible working life.

In most of these gig economy tribunal hearings, the claimant’s employment status is not straightforward. There are some elements of their role that appear to suggest they are self-employed, such as being able to refuse work. Other elements suggest they are an employee, for example driving a branded vehicle and having a tracker device fitted.

On the one side of the argument, many workers value having the freedom to be able to choose when they work. However, for every person who is happy to accept the conditions imposed upon them in return for this flexibility, there are many more who are not so content and who feel forced to work in this way because they have to make a living somehow.

Therein lies the problem. Our society is simply not ready for a gig economy of the nature we have seen emerge with the advent of Uber, Deliveroo and Hermes. A gig economy with no protection in place for its workers is open to abuse.

In the case of Hermes, action was brought by 65 couriers who claimed they had been denied basic workers’ rights. The tribunal found that the couriers were not independent contractors and were therefore entitled to the national living wage and holiday pay. Unions praised the decision, claiming it marked the end of ‘exploitation’ under the guise of freedom.

It seems that employers can no longer pick and choose which rules they obey and the status of worker has been defined as one that commands employment rights and protection.

If nothing else, these cases help to clear up some of the uncertainty surrounding the practicalities of servicing our app-driven life on demand. The danger now is that employers could face a barrage of claims from those who are genuinely self-employed as well as from those who potentially deserve greater rights.

My immediate advice to employers would be to evaluate roles and clarify the rights and status of all those who provide a service to the business but are not on the ‘traditional’ payroll. In the longer-term, I recommend taking time to consider how technology may transform your workplace in the future and your roles and responsibilities as an employer.