Georgetown Law
Technology Review

The App Drivers & Couriers Union (ADCU), a union that represents private hire couriers and drivers in the UK, filed a complaint against Uber in the District Court of Amsterdam on October 26, 2020. The complaint challenges Uber’s alleged practice of using an algorithm to make firing decisions without human consultation. The algorithm identifies fraudulent driver activity and the company allegedly relies on this algorithmic identification as a basis to terminate drivers. The complaint alleges that this conduct is a breach of Article 22 of the European Union’s (EU) General Data Protection Regulation (GDPR). Uber’s European headquarters is in Amsterdam, which is why the ADCU filed their complaint there and not in the UK.

The ADCU is asking the Netherlands court to overrule the algorithm that fired four Uber drivers, three in the UK and one in Portugal. All four drivers were informed by Uber via text message that their accounts were being deactivated after “fraudulent activity” had been detected. The drivers all deny they were engaged in fraud and Uber has not produced any evidence in support of any allegations of fraud. ADCU is arguing that the definition of “fraud” in Uber’s “Community Guidelines,” which includes activities such as logging in and out to await higher surge pricing and declining offered work, is overly broad. The ADCU believes that the definition of “fraud” is intentionally broad so Uber can circumvent its obligations to drivers who are actually fired for other, performance related reasons.

This suit is groundbreaking as the first challenge based on GDPR Article 22 protections. The GDPR, which came into effect in 2018, imposes obligations on companies which collect personal information if that data is related to EU consumers, regardless of the consumer’s physical location in the world. Under Article 22, individuals have “the right not to be subject to a decision based solely on automated processing.” Furthermore, Article 22 gives individuals who are subject to decisions based on automation, such as an algorithm, the right to request a human review and the right “to express his or her point of view and to contest the decision.” Anton Ekker, the lawyer representing the drivers in this suit, argues that the notices of termination to the drivers contained only general information and failed to explain why the drivers were dismissed. Furthermore, Uber gave the drivers neither access to any alleged evidence against them, nor the opportunity to challenge Uber’s decision to terminate their employment. According to the suit, Uber simply ended their employment without recourse.

Uber defends its practice, stating that the drivers’ accounts were deactivated only after they had been manually reviewed by a specialist team. So far, Uber has declined to respond to the particulars of the ADCU suit and has not acknowledged the claims of the specific drivers involved.

This lawsuit is neither the first time that ADCU has sued Uber over its use of algorithms, nor is it likely to be the last time. In July of this year, it filed a complaint against Uber, claiming the company failed to provide access to data and properly explain its algorithmic management as required by the GDPR. Furthermore, concurrent with the suit pending in the Netherlands court, ADCU has launched a crowdfunding campaign that seeks to raise £20,000 ($26,000) in the coming weeks to fund the current suit, future similar actions, and to cover any potential adverse cost awards. The union is also asking other Uber drivers and couriers who have been fired in similar circumstances to come forward and register with the union in preparation for a “potential future action.”