Uber suffers defeat in Kenyan court, lessons for Ghana
A Kenyan High Court, presided over by Justice Francis Tuiyotth, has ruled that Uber Kenya Limited violated a contractual agreement with drivers regarding minimum fares.
The ruling is in respect of a suit filed by some 34 Uber drivers in Kenya five years ago, in 2016.
The drivers filed the suit against Uber Kenya Limited for allegedly violating an online contract signed by drivers in Kenya.
According to court documents, the online contract stipulates that Uber riders/customers were to pay a minimum of $0.54 per kilometre, with a minimum fare of $2.71 for the shortest trips. Under this agreement, Uber Kenya Limited retained a 25% cut of overall earning from each ride, similar to what Uber takes from drivers in Ghana.
But in July 2016, Uber reduced the minimum rate per kilometre to $0.32 and the minimum fare to $1.81 per trip without consulting the drivers.
This, according to the plaintiffs, was a breach of contract that left them unable to meet their operational costs such as vehicle maintenance to adhere to Uber standards, not to talk of the ever-increasing fuel cost, and payment of weekly sales to car owners, in the case of drivers who do not own their cars.
A similar thing happens in Ghana, where Uber gives riders/customers juicy discounts just to keep them using Uber services. But Uber drivers in Ghana say after Uber had given the discount to riders, they still charge their 25% cut from the discounted rate, leaving drivers with next to nothing.
But in court, Uber Kenya Limited claimed that the group of 34 drivers had not entered into contracts with them but had done so with Uber BV, a private LLC registered in Amsterdam. Because of this, Uber Kenya Limited said they were not liable for the breach of contract.
The High Court of Kenya however ruled that Uber Kenya and Uber BV are one and the same because, per document available to the court, they shared the same email addresses and same legal representation. The court ruling highlighted the growing contradictions between faraway multinational tech companies and their expressed intent to contribute to Africa’s development.
Recently, Twitter announced plans to set up in Ghana. What kind of contractual arrangement would the local office have with Ghanaians – would they seek to absolve themselves from any liabilities and pass the buck to faraway mother companies, or regulators in Ghana would ensure they become proper legal entities in Ghana who can sue and be sued?
Uber and its driver
In the Kenyan case, for instance, Uber maintained that it does not employ drivers but only acts as an intermediary between the drivers and clients. So drivers cannot sue the company with regards to terms and conditions of service.
However, this claim by Uber has also been shot down by a number of court rulings across the world.
In April this year, a group of South African lawyers partnered with a UK law firm to file a class action suit against Uber that would force the company to recognise drivers as employees with benefits rather than independent contractors.
Uber has also been in and out of UK courts over how it classifies its drivers. In February this year, the company finally agreed to treat drivers as workers after losing in front of the Supreme Court. More recently, The Court of Amsterdam struck down Uber’s intermediary status, ruling that drivers are, in fact, employed by the company.
In spite of all these rulings, in Ghana, Kenya and elsewhere in Africa, Uber continues to treat drivers as independent contractors rather than employees and continues to shortchange the drivers in an attempt to win and retain customers.
Uber has over 12,000 drivers in Kenya as of November 2020. Ghana has close to 10,000 drivers on Uber and other digital taxi apps like Bolt, Yango and recently Bobo. Gradually, Uber drivers seem to be losing interest in the app.
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Currently in Ghana, lots of digital taxi drivers either go off the Uber app entirely and keep Bolt and Yango active, or when they get requests from Uber, they agree with the rider to go off the app during the trip so that they get to keep the full amount with just a little cut by Uber.
Divide and rule
There is a reason why Uber and other online taxi operators treat drivers as independent contractors instead of as employees or as a union. By doing so, they can easily isolate the vocal drivers and penalize them to put fear in other drivers.
In Kenya for instance, the Chairman of the Digital Taxis Association of Kenya, David Muteru, who led the team of 34 in the group lawsuit, has been removed from the Uber platform because he took them to court. If he was an employee, leading a union of aggrieved workers, Uber could not have terminated his employment in such an arbitrary and machiavellian manner.
In Ghana, when some 200 Uber drivers held a demonstration in 2018, they could not go far with it because while they were protesting, thousands of other Uber drivers were busily working and making money. The divided driver front works for Uber and the other digital taxi companies, so they have not cared to address the concerns of the drivers.
In fact, when the drivers went on demo and journalists in Ghana approached the Uber office in Ghana for their reaction, they referred the media to their Communications Officer in Nigeria and sometimes to their Comms team in South Africa to address driver issues in Ghana. Meanwhile, when they launch services in Ghana, they have Ghanaiansl officials who speak to the media about the services.
It is time the digital taxi drivers in Ghana went to court and presented the rulings in Kenya, Amsterdam and in the UK as reasons to demand a fairer relationship between them and Uber, and indeed even between them and the other digital taxi platforms.
It has to be an employer-employee relationship, or at least, the driver unions must be recognized as representative of the drivers for purposes of consultation and negotiations. Regulators must insist on this.
Secondly, the drivers must come together and begin to also punish the adamant apps. Bolt has also started charging 25% off drivers’ earnings, and the drivers have started complaining. If drivers move on to Yango and Bobo, it might make them reconsider their position.
Finally, as a country, we need to take a look at the status of the subsidiaries of multinationals in the country. This intentional and dodgy way of absolving themselves from responsibility regarding issues with clients in Ghana must be stopped.
It does not make sense that a company in Ghana/Africa would have the luxury to pass the buck to their mother company in “Krakata” due to some murkey ownership arrangement that is irrelevant to the customer.
