Stephen Wilson, QC participates in the IR Virtual Series – Shock Of The New: What is the impact of the gig economy on the traditional workplace?

Foreward by Andrew Chilvers

Whenever the gig economy comes up in conversation, app-based technology companies such as Uber usually get a mention as the emerging business models for ‘gig’ workers. And while these new ‘gig’ business models are changing the way people work, many jurisdictions are resisting the changes taking place.

Back in the pre-COVID-19 days of 2019, two London-based Uber drivers sued the company claiming they should be classified as workers and given a minimum wage, holiday pay and other benefits due for company employees.

They argued that Uber was a proper taxi company employing drivers to provide a service for customers. Uber employment rules included standardised routes and fares, similar to any employer-employee relationships, and driver standards and conduct, under the Uber brand banner. Indeed, they said if drivers failed to keep to these standards their driver accounts would be deactivated, essentially sacking them like any other company.

Meanwhile, Uber argued that it was not a taxi company but rather an app-based software company providing a direct contact (via the app) between the driver and the customer. Simply put, the app helps freelance employees gain customers and the company’s terms of business state that drivers work for themselves. They are not obliged or indeed contracted to work solely for Uber. An employment tribunal upheld the taxi drivers’ claims, while Uber was set to appeal the decision.

The issue of companies such as Uber and Deliveroo as employers of gig workers and drivers of the gig economy is a talking point the world over. The debate goes well beyond taxi and delivery services and highlights the fundamental shift now happening in the modern workplace. This shift eschews the traditional nine-to-five office hours in favour of employment based on often casual, remote working underpinned by digitisation. Above all, it’s a generational shift based on technology, as our members discuss in the following pages.

The recent resurgence of the gig economy can be seen as an extension of the technology revolution in the workplace. Does the gig economy offer benefits that older models of employment lack?

Having listened to what my colleagues are saying, Rachida and Laura both made very valid points. One of the notes I’d written down in preparation for this discussion was that there’s no gig economy in the Turks and Caicos Islands. But when I stepped back and thought about it, I realised that actually the gig economy is one of our biggest selling points. The Turks and Caicos Islands is one of the most beautiful places on the planet. It is an hour and 20 minutes flight from Miami, three hours from New York and it has the US dollar as currency; English law as its base. It has the leading Internet speed in the Caribbean so you can work in the Turks and Caicos Islands as gig workers for any economy in the world and not pay taxes unless of course you are unfortunate enough to be bound to pay taxes in another jurisdiction based on your worldwide earnings.

But what I do think, agreeing with Francisco, is that this is happening to us all now. We see a change in the way people think about work – even our age group. Meanwhile, the millennials are growing up as technological wizards and gig economists. People will want to be somewhere where it is safe to work and make use of Internet facilities and have the ability to work from home. I can see a shift in the dynamic, away from the traditional employment structures, and perhaps all of us as lawyers could become self-employed consultants.

As employers see the benefits of the gig economy in terms of cutting the costs of social security payments, pensions and health insurance, how important is it for companies in different jurisdictions to understand local legislation and court precedent?

How important is it for employers to know the different legislation in each jurisdiction? Obviously, very important. Is it actually employees who benefit from the gig economy? Certainly, as we’ve discussed, there are many who choose not to be employees and choose to be self-employed instead.

In terms of local legislation in the Turks and Caicos Islands, not unlike Venezuela, it is a very heavily employee-biased legislation. We have a concept of ‘dependent contractor’ who, even if not employed under a contract of employment, is treated under the Employment Ordinance as an employee. Indeed, it’s quite difficult to show that somebody is self-employed rather than employed. That’s why I said earlier, we do not have what one might think as a thriving gig economy. That being said, one of the things that drives many employment-related matters here is our very immigration-centric country.

You only have the right to remain in the Turks and Caicos Islands if you have some form of permit or you are a native of the island. In order to work here, as an expatriate, you have to have either a work permit (employed person) or a work permit (self-employed person).

I come back to something I may have mentioned before, obviously taxation is the issue. So, from a tax viewpoint, there is no benefit to you if you are employed or self-employed.

What is the gig economy’s impact on employment patterns in different jurisdictions?

How is the gig economy changing The Turks and Caicos Islands? Well, I think I mentioned before, it is an amazing place to come and work if you can work remotely – and you don’t have to worry about the income tax.