Digital hailing apps such as Uber have been lobbying against regulation. They have always advanced the argument that they are technology companies rather than transportation companies. Hence, they shouldn’t be regulated. Nonetheless, looking at the industry, talking to drivers and listening to customers, there are pending issues that necessitate the need to re-evaluate the position as to regulation.
Uber drivers are good story tellers. Despite the colorful tales, one thing always comes up, the pricing strategy that is adopted by the companies. To some drivers, the rates are very okay and have praised these companies for the employment opportunities created. To others, the strategy is a nightmare. They argue that the rates set by the companies are so low such that they have to work for long hours. They argue that the rates are oblivious of issues such as vehicle maintenance. As a result, many drivers have gone on strike in cities around the world. Nairobi has not been left behind.
Thus, there is need to evaluate whether digital hailing apps should be regulated. To answer the question, we ought to ask ourselves the following:
- What issues have been brought about by digital hailing apps?
- How should they be regulated?
What issues have been brought about by digital hailing apps?
Status of the drivers
To begin with, the most contentious issue has been the status of Uber drivers in relation to the company. Uber has always argued that the drivers are independent contractors and not employees. This distinction is important as it identifies what protections can be accorded to the driver in the law. For an employee, their contract is that of service and for independent contractors, their contract is that for service. When a person is under a contract of service, he is an employee and as a result, that relationship is governed by the Employment Act. This gives him benefits such as the right to collective bargaining. On the other hand, the relationship under a contract for service is governed by contractual terms as agreed by the company. Further, given the lack of scrutiny by the Law, most independent contracts put the driver at a position in which they cannot re-negotiate the terms. A give or take scenario. By this, a contract is in standard form and the driver has to agree to the conditions set therein. If he doesn’t like a term, he should go somewhere else. Given the size of this companies, compared to the driver, the latter has no alternative other than to abide by the terms.
The law in Kenya does not provide a clear distinction between an employee and a contractor and recourse has to be sought from common law and precedent. Under common law, the multiple test set by the Ready Mixed concrete case is instructive. It provides for one to be classified as an employee, one has to consider the degree of control exercised by the employer, the servant agrees in consideration of a wage, he will provide his skill and other provisions in the contract are similar to that of service. Further, in the case of Kenneth Kimani Mburu and Another v Kibe Mungai Holdings Ltd, the Court held that if the claimant’s role is integral to the business, the contract is that of service.
From the above court conclusions, it is evident that the relationship between the driver and the company is that of an employer-employee relationship. This is because Uber recruits and interviews drivers, it fixes the limits for the fare, subjects’ drivers to rating systems and handles complaints. More so, the drivers are intricate to the operations of the company. Without drivers, the company ceases to exists. Unfortunately, this question has not been brought before a Kenyan court but has been litigated in other jurisdictions.
The experience from other jurisdictions.
In the State of New York and Switzerland, the courts and tribunals argued that the drivers are employees. In California, there have been mixed decisions with some bodies arguing that they were employees and others concluded that they are contractors. In Africa, the South African Court seized of the matter in the case of Uber South Africa Technologies v National Union of Public Service and Allied Workers did not determine the merits of the case as it was dismissed at the preliminary stage for want of jurisdiction and standing. The Court held that the claimants ought to have sued Uber BV (Parent company) instead of Uber SA (subsidiary) as the elements of the case pertained to the parent and not the subsidiary.
Answering the question on status of the drivers would resolve the issue of payments. In addition, this would also address liability of the driver and/or the company for wrongs committed. When an individual is an employee, the employer is vicariously liable. That is, the employer is liable for the wrongs of the employee. For a contractor, the employer is not liable. And for Uber to argue that the drivers are contractors, that would mean that the company is not legally responsible. And yet, Uber vets its drivers before allowing them to use their service. How then can we then exempt Uber from responsibility?
The other issue connected to liability is that of misrepresentation. This is a false statement of material fact made by one party which affects the other part’s decision in agreeing to the contract. Uber’s selling point is safety to its customers. Which is indeed true. Nonetheless, there have been instances in which the guarantee of a safe ride home has been seen as ‘false.’ This is based on reports of sexual assault against its customers. A 2018 CNN report found out that 103 Uber and 18 Lyft drivers has been accused of sexual assault and abuse. This defeats the safety message used by the company. Uber could argue that it has done quite a lot to improve the safety of its customers. Some of the measures introduced include a panic button, trip share options where one shares his trip with a family member, anonymizing passenger data among others. However, are these measures enough?
Given the issues that have come up as a result of digital apps, there need to regulate these companies to protect the parties therein and the advantages are many. Most of societal problems are better solved with the participation of the government. For instance, alcohol consumption had wreaked havoc in the lives of many people. And when the government intervened through the infamous Mututho rules, there was order. Despite the fact that the problem was never fully addressed, government intervention brought some order in the industry. The same case applies to digital transport. The intervention of the government is important.
To begin with, the government understands societal needs, therefore it is better placed at implementing measures that ensure the good-will of its people. In this case, Uber drivers. Secondly, the relationship between drivers, users and technology companies has human rights elements. Since the driver’s labor is intricate to this job, rights such as dignity, fair labor practices, life among others come up. Therefore, the government being the custodian of human rights, it has to ensure that the rights of its citizens are protected. Lastly, governments are under an obligation to ensure that their people are not exploited by multinational companies. In this case Uber and the others.
The regulatory mechanism.
To effectively protect all actors, the government ought to appreciate that Uber drivers are employees and not contractors. Thus, regulations should be imposed that require drivers to be employed under a contract of service and not that for service. This means that these drivers would be subject to the Employment Act thus enabling the government to scrutinize the business practices. In addition, this will enable proper collective bargaining agreements to be set between the drivers and the company. This will allow drivers to set an agreeable rate per kilometer, provisions for variations based on the economic conditions among others.
In the alternative, regulations can require drivers to form digital guilds recognised by the law that function the same way as trade unions. Thus, these guilds would enter into agreements with Uber regarding the working conditions and these agreements should be recognized by the law.
Moreover, the regulations should prescribe the extent to which Uber, the drivers and the customer can be held liable for wrongful acts committed. This will avoid instances under which a party can hide behind a contractual clause to escape liability.
Digital hailing apps cannot be completely vindicated as they have brought with them numerous benefits to all the parties involved. They are now part of the gig economy which is the new Africa. They have created jobs and have brought about unprecedented levels of safety. Nonetheless, there is need for a check by the government to protect this emerging wage group. A research by the Center for Global Development found that more than 82% of Africa’s employment comes from the informal sector. And instead of the government leaving its citizens in the claws of huge corporations, emphasis should be made to protect those who derive their livelihood from them. And in this case Uber drivers. Their labor is connected to their dignity and ought to be protected.
Besides, the clamor for profits, market control and dominance should not blind the all and the sundry to the need to protect the rights of drivers