the negotiator: Eric’s minimum wage mystery

As you will have read elsewhere, 2021 has finally come good for some of the members of the GMB trade union. We have been able to mount a number of successful campaigns against the “fire-and-rehire” tactics of some bosses.

Our driver members have been afforded protection through our recognition agreement with Uber and other companies, and in February 2021 the Supreme Court unanimously found in favour of my union, in a case we brought on behalf of our driver members against Uber.

That historic decision clarified the employment position of professional private hire drivers. However, it has led to some issues requiring further interpretation. One of these is whether the hourly earnings of a driver which are over the hourly national minimum wage (NMW) can be aggregated with that paid by the “employer”, so as to offset the sum paid by the latter.

The rates of pay under the NMW are set by government and are based on the recommendations of an independent body. They are currently £8.91 per hour for all workers over 23 years of age.

What did the Supreme Court decide? They clearly found that drivers logged on to the Uber app, and by extension, those of other companies, were “workers”. The Court said that they thought: “…it clear that the employment tribunal was entitled to find that the claimant drivers were workers who worked for Uber London under ‘worker’s contracts’ within the meaning of the statutory definition.Indeed, that was ... the only conclusion which the tribunal could reasonably have reached.”

Working time was said by the Court to fall under regulation 2(1) of the Working Time Regulations, as “any period during which he (sic) is working, at his employer’s disposal and carrying out his activity or duties”.

The court went on to state: “There is no difficulty in principle in a finding that time when a driver is ‘on call’ falls within this definition.”

‘On call’ in this context means when a driver has logged on to the app and is awaiting work from Uber or any other similar operator. So, the Court concluded, logging onto the Uber app meant that the driver was working for Uber from then until they logged off.

The Court further defined the NMW for private hire drivers as “unmeasured work”, one of the categories described under the National Minimum Wage Regulations, and not “time worked”. What this means is that where there is not a regular output produced in a work role, for example, by a worker producing widgets in a factory, but rather a variable output for which payments are made according to that output. For example, for a period a driver

may make 10 journeys but during another similar period they may make only four. So Dennot, you may ask, what has this got to do with the price of fish. Well, there appears to be a dilemma highlighted by the Supreme Court decision. Namely, is the payment of the NMW inclusive of earnings over and above the NMW hourly rate for the period worked or exclusive of such earnings. Dennot Nyack Let’s use the example of Eric, who works for a well-known South London operator. Eric contacted me to complain, amongst The union view from our GMB representative other things, that his employer had underpaid him for his time worked. To keep it simple I will illustrate it as follows. Eric claimed that he had worked a 10-hour shift during which he had some tasty easy runs in the first three hours in which he earned £320.16. He was then logged onto their app for the remaining seven hours and earned nowt, zero, zilch, nada, as there had been no jobs coming in to the firm. He contended that he should have been paid £8.91 for each of those seven hours, or a total of £63.37, in addition to the £320.16 earned during the happy period. While I would agree that had he earned £63.37 during the seven hours, I believed that the £320.16 also had to be paid, so I was unsure on what basis Eric felt that he was entitled to the £63.37. If Eric is right, then it would appear to me that he would be entitled to the NMW for every hour he was available for work including including the hours when he also earned the £320.16. What would the “employer” do in such a situation? It is likely that they would so arrange the contract as to give them the option to refuse Eric the opportunity to be “on call”, either through contractual or technical arrangements, or a mixture of both. I am certain that the lawyers for the large app companies are already gaming the options open to their clients. I believe that my colleagues in the union are also assiduously studying the measures that can be taken to clarify such potential anomalies and substantiate the arrangements they have entered into with the companies. In this way maybe Eric’s mystery – and my dilemma – can be solved. —Dennot Nyack n Dennot is a AGM trade union member and was a former representative of the GMB’s professional drivers. He is also an author and broadcaster with a strong knowledge of the private hire industry and an equality and diversity specialist. email: dennotnyack@yahoo.com mobile: +44 0740 625 276