Ghana Declares that Bolt Drivers are Independent Contractors: Five Reasons Justice Noah Adade v Bolt Ghana Ltd Deserves a Different Verdict
Editor’s note: this article and the associated image were originally published on The Law Platform.
The recent Ghanaian circuit court decision in Justice Noah Adade v. Bolt Ghana Limited and Another (hereafter Justice Noah Adade) held, among other things, that Bolt drivers in Ghana are independent contractors, is cause for concern.
With this decision, Ghana joins the likes of South Africa, Nigeria, and the State of California that classify gig workers as independent contractors. In Justice Noah Adade, one of the issues for determination was whether Bolt drivers are employees of Bolt Holdings OU. The court held that Bolt drivers are independent contractors. Mechanically, the court’s decision is in tandem with the traditional notions of work relations in Ghana, except that gig work presents different legal dynamics.
With the complexity and uniqueness of platform and gig work, this contribution offers five reasons why the circuit court in Ghana should have arrived at a different conclusion on the employment status of gig workers.
First, the court should have noted that the Fourth Industrial Revolution (4IR) era fundamentally alters the traditional notion of work. Remote work, crowd work, and gamification of work, among others, are a handful of seismic changes to labour and employment law. According to Taylor et al., gig work is a work relationship performed fully or partly online. Heeks classifies gig work into two sub-categories – digital online work and physical gig work. Physical gig work includes location-bound physical activity such as taxi driving, food delivery, and house cleaning managed via platforms such as Uber, Bolt, Yango, Uber Eats, etc. Digital gig work refers to exclusively executed online jobs such as data entry, translation, online teaching, telemedicine, online notary services, and web development man-aged via platforms such Notarize.Com, Amazon Mechanical Turk, Upwork, and Freelancer.
“platform workers are left without job security, sick leave, pensions, maternity leave, and other benefits because of their classification as ‘independent contractors.’”
These new forms of work offset the traditional structures of work. Thus, gig workers may not head to a brick-and-mortar office, use smartphones or laptops, have no fixed work schedule, and, most times, have no fixed salary. Coleman and Mpedi observe that on the periphery, gig workers appear independent with flexible job schedules and anonymised work relationships with platform owners. Structurally, the business model of digital platforms is designed for transactional interaction between clients and gig workers as “independent contractors.” This deliberate three-way digital arrangement aims to help digital platforms avoid liabilities and risks associated with their business operations while profiting from the toils of gig workers.
Consequently, platform workers are left without job security, sick leave, pensions, maternity leave, and other benefits because of their classification as “independent contractors.” In response to these anonymisation tactics, the International Labour Organisation (ILO) Employment Relationship Recommendation directs that nations combat disguised employment relationships by employers.
The circuit court skipped the fact that these disguised relations are deliberately forged to evade liabilities and risks and rake in profits for the digital platforms.
Secondly, the court should have considered the overarching purpose of labour law and regulation of work relations. Bilchitz advocates for the horizontal application of human rights to businesses because of the power asymmetry in work relations. Otto Khan-Fruend argues that “[t]he main object of labour law has always been…to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship.” Guy Davidov maintains that although there is nothing inherently unjust about the inequality of bargaining power, it is the objective of labour law to regulate work relations to avert abuse. Ghana’s Constitution and labour laws seek to protect workers against exploitation. With the complexity of platform jobs and the fundamental object of labour law in mind, the court could have appropriately categorised Bolt drivers as employees.
Thirdly, the court should have directed its mind to the evolving jurisprudence on platform work relations within commonwealth jurisdictions. Innovative judicial techniques are employed by commonwealth courts to impute employment relationships and circumvent the contractual mischaracterisation prevalent in the gig work ecosystem.
In the UK case of Uber BV and others v Aslam and Others, the court employed a six-step matrix to establish a master-servant relationship between Uber drivers (gig workers) and Uber BV (platform owner). The UK Supreme Court held that Uber drivers are workers because (1) Uber BV determined the transportation fares and compensation for the drivers, (2) the service agreement was solely designed by Uber BV, (3) Uber BV wielded power to penalise and terminate the work relations if drivers do not meet performance standards, (4) Uber BV controlled the interaction between the driver and the traveller, (5) the freedom of driver work was limited the moment drivers log onto the app, and (6) Uber BV controlled the performance of the drivers.
In the New Zealand case of E Tū Incorporated v Rasier Operations BV, the court noted that “…while none of the defendants were operating a traditional employment model, Uber’s characterisation of its merely-a-facilitator role was not supported by the evidence –particularly the evidence about the high level of control and subordination which characterised the relationships at issue…”
In Canada, the Ontario Labour Relations Board in Canadian Union of Postal Workers v Foodora Inc held that flexibility and economic independence do not deny gig workers the status of being platform employees. Further, in Uber Technologies Inc. v. Heller the Canadian Supreme Court declined to enforce an arbitration clause in Uber’s standard form contract because it dictates that the aggrieved driver initiates arbitration proceedings at The Hague.
In Motaung v Samasource Kenya EPZ Ltd, the Kenyan court rejected Meta Platforms (Facebook) argument to be struck off the suit procedurally. The Kenyan court declined and observed that “…substantive justice is the ultimate goal unless the procedural deficiency is sufficiently grave to render substantial justice unattainable.”
In Olatunji v Uber Technologies Systems (Nigeria) & Taxify Technologies Nigeria Limited, the industrial court of Nigeria elevated the importance of the facts surrounding employment contracts, noting that even explicit terms of employment contracts may be ignored if “they are not consistent with the reality of the relationship between parties.” The strength of this emerging jurisprudence in other jurisdictions could have persuaded the court against construing working relationships mechanically and based on contract alone without having due regard to the actual circumstances surrounding such relationships.
Fourthly, in concluding that Bolt drivers are independent contractors, the court oddly simplified a rather technologically complex relationship. The court reviewed the definitions of “worker” and “employer” under the Labour Act, and the common law position on the employer-employee relationship. This essay submits that such analysis is insufficient to capture the increasingly complex nature of contemporary and disguised forms of work. The court predicates its designation of independent contractors on the fact that Bolt drivers do not receive regular or fixed salaries, termination occurs by deletion of profile or deactivation within the Bolt app rather than dismissal, Bolt does not control drivers on the app, and Bolt drivers bare their own insurance risk. The court missed that Bolt controls the algorithms on the Bolt app, which assigns routes to drivers, determines fare, decides the driver’s compensation, rates driver’s performance, and can deactivate reckless drivers who put customers in danger. That is control!
Fifthly, courts need to engage existing academic literature in Ghana and emerging developments elsewhere on grey areas of the law. Law is essentially life-long learning, and academic literature is a great resource for complex and nuanced analysis like what was before the court. In grey and new areas of the law, like platform work, the comparative legal analysis provides insight into the shared legal experiences of other jurisdictions. Engagement of academic literature would have offered the court a bedside view of trends in different courts to bypass the tactics of digital platforms. Also, engagement with academic literature offers a court an all-round perspective on legal constructs, especially Fourth Industrial Revolution (4IR) law.
In conclusion, all hope is not lost. Decisions of the Ghanaian circuit court are always appealable. Although the circuit court missed the opportunity to uphold gig workers’ rights under the labour laws of Ghana, an appellate court may seize the opportunity to restate the law and provide the needed protection for Ghanaian gig workers.
