Long post alert.
Last week TfL responded to some concerns I had about the new Uber driver contract and its potential knock on threat to driver compliance by muddying the water between the separate roles of the operator and driver. In a separate DM on twitter TfL agreed to take questions and have their legal team review. I sent over the following questions based on my own concerns and those from drivers that I’ve heard including at two separate workshops amongst drivers. Uber have refused to provide any further guidance beyond the 22 pages of the contract and addendum but they are welcome to comment here if they can answer any of the questions posed to TfL. When TfL respond – assuming they are as good as their word – I’ll post any answers I get in the interests of the community.
- Uber is asking me to agree that it is a technology services provider and does not provide ‘transportation services, function as a transport carrier or agent for the transportation of passengers.’ In agreeing to this does it mean I am agreeing to drive for an entity that is not an operator as defined by the law? If yes and if I do so am I breaking the law?
- The contract specifies: ‘Driver will obtain the destination from the User, either in person upon pickup or from the Driver App if the User elects to enter such destination via Uber’s mobile application.’ However TfL Operators Regulations on operator record keeping 11.d say the operator must record ‘the main specified destination at the time of the booking’. If I accept an Uber booking and it turns out that no destination is entered am I breaking the law if I do not cancel the booking immediately?
- The Uber contracts says: ‘As between Uber and Customer, Customer acknowledges and agrees that: (a) Customer and its Drivers are solely responsible for determining the most effective, efficient and safe manner to perform each instance of Transportation Services.’ In the contract Uber broadly defines drivers as customers. Given that a common rider concern or complaint relates to the route taken does this mean the driver must now maintain for TfL a complaint log rather than the Operator per operator regulations 14.1 & 2? It is important that TfL clarify this and directs Uber to route all complaints directly to the driver. At the moment Uber does not, instead Uber will deduct from driver income any refunds it decides to give at its sole discretion. This is an important point of clarity not only for drivers but also the travelling public as to where accountability lies and how complaints are to be handled.
- The Addendum also stipulates the following: ‘Uber and its Affiliates in the Territory do not, and shall not be deemed to, direct or control Driver generally or in Driver’s performance of Transportation Services or maintenance of any Vehicles. Driver acknowledges that neither Uber nor any of its Affiliates in the Territory controls, or purports to control: (a) when or for how long Driver will utilize the Driver App or the Uber Services..’ Similarly, I’m concerned if I accept this clause I will defacto become an operator and will be faced with the costs and responsibilities that such would entail. I’d be grateful for your opinion.
- The new Uber driver contract says: ‘Driver may be deactivated or otherwise restricted from accessing or using the Driver App or the Uber Services in the event of a violation of this Addendum or Transportation Company’s violation of the Agreement, or Driver’s or Transportation Company’s disparagement of Uber or any of its Affiliates, or Driver’s or Transportation Company’s act or omission that causes harm to Uber’s or any of its Affiliates’ brand, reputation or business as determined by Uber in its sole discretion.’ There maybe rare occasions when a driver correctly believes the operator (if Uber is indeed an operator) is not fulfilling its duties according to the law and such breaches are of vital public interest. I’m concerned such a driver who whistleblows these concerns to TfL or other regulatory authorities will be perceived as ‘disparaging’ by Uber leading to his dismissal. If this were to happen, will such communication be protected under public interest disclosure laws? Will TfL represent the driver in any such dispute with the operator to prevent loss of livelihood and to maintain a safe haven for public interest disclosure?
- The new Uber contract specifies that drivers may lose their job if they cannot maintain a rider ratings level specified by Uber. However, common sense and collective experience shows that drivers ratings decline when Uber deploys surge, dynamic pricing on the market. Is dynamic pricing legally permissible? Can TfL require Uber to declare the correlation between surge pricing and driver ratings so that this factor maybe factored out before any decision to dismiss a driver? This pricing model incentivizes drivers to work when prices are high but fear of dismissal can also force us to work only when prices are low.
- The new Uber driver contracts says ‘Uber and its Affiliates reserve the right to use, share and display Driver and User ratings and comments in any manner in connection with the business of Uber and its Affiliates without attribution to or approval of Driver. Driver acknowledges that Uber and its Affiliates are distributors (without any obligation to verify) and not publishers of Driver and User ratings and comments..’ There is an obvious concern for driver safety and privacy when their Uber profile and data is posted on the internet by riders in connection with a customer service complaint. At the moment this happens on a daily basis relating to complaints well outside of the driver’s control such as account fraud, Uber cancellation charges and so on. If the Operator takes no responsibility for protecting driver privacy I can envisage serious harm as a result of internet shaming. Under current and proposed regulations is it possible to require the Operator to take responsibility for safeguarding driver data?
- The new Uber driver contract says they driver is allowed to renegotiate the fare with the rider but only for a reduced fare but not an increased one. Under terms of my license will I be breaking the law if I renegotiate the pre booked fare? Am I, as driver, permitted to increase the fare under TfL regulations?
- The new Uber driver contract says ‘As between Uber and Customer, Customer acknowledges and agrees that: (a) Customer and its Drivers are solely responsible for determining the most effective, efficient and safe manner to perform each instance of Transportation Services.’ but also says Uber and/or its Affiliates in the Territory reserve the right to: (i) adjust the Fare for a particular instance of Transportation Services (e.g., Driver took an inefficient route,. This is very confusing for us drivers. Under the current regulations who exactly is responsible for adjusting fares and refunding customers? Is it the driver or the Operator? Is Uber an Operator as it defines itself in this contract?
- The new Uber driver contract specifies: ‘Customer agrees to maintain during the term of this Agreement commercial general liability insurance that provides protection against personal injury, advertising injury and property damage to third parties at levels of coverage required by all applicable laws in the Territory.’ This is in addition to a requirement to carry ‘no fault’ vehicle insurance which I take to be comprehensive car insurance. However, the operator regulations specify it is the Operator who must maintain general liability insurance of no less than £5 mio at least for the operations centre. Can you advise on what kind of additional commercial liability insurance drivers should buy? Uber has declined to explain. If I take out commercial insurance am I acting as an operator and therefore breaking the law? If I take out such insurance where should the injured party look first for compensation – the driver or Uber’s policy?
- The new driver contract also demands that Uber is named as additional insured party in the driver and commercial liability policy. Again, I’m keen not to blur the lines between the operator and driver. Is it appropriate or even a requirement for the driver to insure the operator? Should it not be the other way around? The contract also demands I must inform Uber if I have any claim on such policies even if there is no rider in the car or if I am using the car privately. Is this a regulatory requirement and Uber is demanding this data to pass on to TfL as part of a regulatory requirement?
- Uber also included the following in the contract which greatly worries me in terms of safety and security management: ‘By using the Uber Services and Driver App, Customer acknowledges and agrees that Customer or a Driver may be introduced to a third party (including Users) that may pose harm or risk to Customer, a Driver or other third parties. Customer and Drivers are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Uber Services or Driver App. Notwithstanding Uber’s appointment as the limited payment collection agent of Customer for the purpose of accepting payment from Users on behalf of Customer as set forth in Section 4 above, Uber expressly disclaims all liability for any act or omission of Customer, any Driver, any User or other third party.’ Earlier this year I was assaulted by a customer and it took Uber more than 10 weeks to comply with Metropolitan Police requests for rider identity and other information necessary to the investigation. Uber refused to disclose if the rider was ever removed from the platform so as to reduce future risk to drivers. I have reason to believe they were not. What responsibilities does the Operator have to protect the driver on the front line? Surely, Uber has a responsibility to not knowingly introduce drivers to riders known to have caused injury to other drivers?
- The next clause really worries me a lot. Customer shall indemnify, defend (at Uber’s option) and hold harmless Uber and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) Customer’s breach of its representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to Customer’s provision of Transportation Services or use of the Uber Services. If TfL were to take legal action against Uber as an operator for something that relates directly or indirectly to my actions as a driver could I end up having to pay Uber’s legal bills in their dealing with such a complaint from TfL?
- Similarly for this next clause, by signing this contract would I be accepting all of Uber’s regulatory responsibilities as an Operator? Will TfL now hold me accountable for Operator responsibilities? As between Customer and Uber, Customer is and shall be solely responsible for its Drivers’ provision of Transportation Services. As such, Customer shall indemnify, defend (at Uber’s option) and hold harmless Uber and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes directly or indirectly arising out of or related to its Drivers’ provision of Transportation Services or use of the Uber Services.
- The contract also specifies I must agree: ‘The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship (including from a labor law, tax law or social security law perspective), between Uber (or any of its Affiliates in the Territory) and a Customer or any Driver; and (b) no joint venture, partnership, or agency relationship exists between Uber and Customer or Uber and any Driver.’ Obviously I don’t want to give up any statutory rights especially to worker rights. By signing this am I giving up these rights? Does TfL have a policy on fair employment agreements in the private hire trade between operators and drivers? Is there a TfL regulation that requires the Operator to obey all employment laws in order to keep its license? More confusingly the Addendum stipulates: ‘Driver currently maintains a contractual or employment arrangement with Transportation Company to perform passenger carriage services for Transportation Company.’ Does this mean that I cannot be a driver as an individual sole trader? I appreciate this is a question for Uber but they are not prepared to take questions on the contract. While the main contract refers to me broadly as the ‘customer’, the addendum refers to me as ‘the transportation company’ and the ‘driver’ which is all very confusing for us. Does TfL see these roles as separate functions under the regulations and if so which responsibilities are assigned to the Operator as distinct from Driver?
- Finally I appreciate your advice on the arbitration clause. Arbitration is binding, confidential and can only be accesses in the Netherlands. If I have a dispute with Uber over terms that I am worried would place me outside of compliance with TfL I would not be able to disclose this to the regulator. Or is it possible that the obligation to disclose to TfL supersedes any agreement on arbitration arrangements?