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Uber algorithm could be weak link in its driver rights appeal case and latest duel on data

Former UK Uber drivers James Farrar and Yaseen Aslam are in yet another court battle over driver rights, this time it’s about data access and management control.

A group of UK Uber drivers from London, Birmingham, Nottingham and Glasgow have launched a legal action against Uber in the Netherlands supported by the App Drivers and Couriers Union (ADCU), the International Alliance of App-based Transport Workers (IAATW) and Worker Info Exchange.

The case is unprecedented in that the action is supported by the IAATW in an industry first of international collaboration of Uber driver unions.

The action has been taken in the Netherlands because Uber BV, the corporate entity that controls the platform and driver data, is based in Amsterdam.

GDPR: Who is calling the shots- David or Goliath?

The AppDrivers & Couriers Union have filed a complaint against Uber over failure to provide access to data and explanation of algorithmic management as required by GDPR regulations.

The drivers will be represented in the Netherlands by Anton Ekker of Ekker Advocatuur, who is taking up their case. The union’s case will argue that Uber has violated its obligations under the General Data Protection Regulation (GDPR) by failing to provide full access to their personal data.

Multiple Uber drivers have been provided access to little or no data, the ADCU claims, despite drivers making a comprehensive request and providing clear detail on the data requested, it was reported.

ADCU will also argue that Uber has failed to provide sufficient information on the automated decision making and profiling that takes places in the Uber Driver App and other systems used by Uber.

“Despite multiple subject access requests and in clear violation of the General Data Protection Regulation (GDPR), Uber has failed to provide access to the performance related profile data in question, the associated electronic tags and their logic of processing,” the ADCU said in a statement.

Anton Ekker said that with Uber BV based in the Netherlands as operator of the Uber platform, the Dutch courts now have an important role to play in ensuring Uber’s compliance with the GDPR.

“This is a landmark case in the gig economy with workers asserting their digital rights for the purposes of advancing their worker rights,” said Ekker. 

This image has an empty alt attribute; its file name is anton-Ekker-uber-driver-lawyer.jpg
Anton Ekker of Ekker Advocatuur

Hefty fines over “secret driver profiles”?

The union said that it will also present evidence of Uber’s “maintenance of secret driver profiles” with work related performance classifications.

The cab hailing app platform company could be fined EUR10K per day if the Dutch courts rule Uber has been deemed to violate data protection/ access law required by GDPR for Uber drivers and UberEats couriers.

In an emailed statement sent to venture news site, Techcrunch, Uber stated that its privacy team “works hard to provide any requested personal data that individuals are entitled to”.

The emailed statement also said that Uber “will give explanations when we cannot provide certain data, such as when it doesn’t exist or disclosing it would infringe on the rights of another person under GDPR.” 

What is the WIE?

The drivers are demanding the right for their data to be ported directly to their union’s data trust established for purposes of collective action/bargaining.

Through the union’s request for collective action and bargaining, the drivers want to gather data for the ‘data trust’ that is operated by the Worker Info Exchange (WIE), according to Ekker’s website.

The WIE is a non profit organisation dedicated to helping workers access and gain insight from data collected from them at work, usually by smartphone.

Worker Info Exchange aims to tilt the balance away from big platforms in favour of the people who make these companies so successful every day – the workers.

Uber drivers can participate by giving Worker Info Exchange their mandate to send a GDPR-request on their behalf, according to Ekker’s website.

James Farrar, Director of Worker Info Exchange and co-lead claimant of in Aslam & Farrar v Uber (UK Supreme Court) said, “Uber has deliberately blocked the efforts of drivers to access their data for the purposes of establishing a data trust. This is not only a violation of the law but a terrible abuse ofUber’s position of informational power over drivers. Drivers suffer not only wage theft but data theft too.”

Farrar also fought for Uber driver health-related protection rights during the COVID-19 pandemic as you can hear on this BBC programme news clip posted on Facebook.

Driver tags: could it put cracks in Uber’s appeal ?

The digital data rights action comes one day before the ADCU defends Uber’s final appeal at the Supreme Court in an effort to overturn a 2016 Employment Tribunal ruling. The last Employment Tribunal ruling confirmed that Uber drivers are workers under the law and entitled to earn the minimum wage, holiday, freedom from discrimination and whistleblower protection.

The digital privacy and access case, if successful for the drivers, could also put a dent into Uber’s appeal on grounds of management control alone, albeit driven by the apps algorithm.

The union said it will argue that Uber drivers are subject to performance monitoring at work and will present evidence of how Uber has attached performance related electronic tags to driver profiles with categories including:

  • Late arrival/missed ETAs
  • Cancelled on rider
  • Attitude
  • Inappropriate behaviour

This runs, according the union, contrary to Uber’s insistence in many employment misclassification legal challenges across multiple jurisdictions worldwide that drivers are self-employed and not subject to management control.

An Uber driver whose identity has been kept private, said, “Of course, there are perks to working for Uber. I started working for them to help me out when I was having trouble financially. Uber was a lifeline, but I worked hard for it…Dealing with Uber can be difficult. They can ban you from driving for them at the drop of a hat and there’s no appeal process.”

Nigel Mackay, a partner in the employment team at Leigh Day, the firm that formed the case Aslam & Farrar v Uber case on behalf of the drivers, said of the appeal case taking place remotely on the 21- 22 of July: “Uber is soon going to reach the end of the road in its fight to stop its drivers being given workers’ rights. If Uber loses, it will have no other option but to compensate those drivers who have brought claims for failures to provide holiday pay and where the company has paid them below the minimum wage.”

If successful in their case, the Uber drivers could be entitled to an average of £12,000 each in compensation, according to a Leigh Day press statement.

“We believe that it’s clear from the way Uber operates that its drivers should be given workers’ rights. From the amount of control it exerts over them, to the ratings system is uses to assess performance. These circumstances all point to Uber drivers being workers,” said Mackay.

To learn about what Uber drivers in the US state of California are contending with, including a new feature for Uber drivers, check out this video.

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