Uber v the world

Last week, Uber lost a significant employment rights case against its drivers. But it’s just another bump in the road for a company whose tiny legal team is always under pressure. 

In just 12 months, Matt Wilson set up Uber’s UK legal function from scratch. In any normal business, this would have been a monumental task – but at Uber it was even more complex, given the company’s appetite for risk and technological innovation and the deeply hostile environment in which it operates.

In the fast-moving world of disruptive technology, anyone can become a commercial rival – a fact highlighted by Alphabet executive David Drummond’s decision to step down from Uber’s board this year, as both businesses entered driverless car territory.

Uber’s lawyers are always on their guard, wary of what might emerge on the horizon.

“A lawyer working at Uber has to demonstrate intelligence, flexibility, creativity, enthusiasm, a can-do attitude, and inquisitiveness,” UK head of legal Wilson says. “Being robust and being friendly are two sides of the same coin.”

But there is one additional, and critical, factor. “You need to be commercial,” he adds.

Bouquets and brickbats

The four-strong team, which sits in Uber’s Aldgate HQ facing a wall of newspaper clippings that either praise or rubbish the company, interacts strongly with the rest of the business. Its members hold drop-in sessions in which employees can ask them anything, and divide their time between competition law, litigation and lobbying and providing legal support to new Uber products.

“You can do more than you think you can by combining working
smart and working hard” – Matt Wilson

Wilson and his colleague Helen Fletcher take on competition and litigation matters, while on the product side, Australian Amanda Hammond takes charge of the day-to-day challenges of Uber spin-off UberPOOL and ex-Slaughter and May lawyer Ella Smith oversees the recently launched UberEats.

Wilson works closely with Uber’s teams in Amsterdam and San Francisco as part of his role. As well as general counsel Salle Yoo, that includes legal director for Western Europe Zac de Kievit and EMEA head of employment law Harriet King, both based in Amsterdam.

Since the legal team is on the front line of the business, calmness and flexibility are crucial parts of the job. “Having a great team around you is invaluable, and something I appreciate daily,” Wilson adds.

“You can do more than you think you can by combining working smart and working hard, genuinely understanding the business from a business perspective as well as a legal one.”

Being part of the business is important for the progress of the in-house function. Smith contends that  “legal advice without commercial context is next to useless” – a sentiment backed by Hammond, who says: “Lawyers like to think they call the shots, but we’re really just one cog in the wheel.”

Calling for assistance

The legal team may have perfected the ability to hurtle from one legal challenge to the next without a pause, but the scarcity of in-house capability means that the team inevitably relies on external counsel for support.

The quartet agrees that lack of resources is the biggest challenge. “Pushing back when you’re too busy and managing your workload is difficult if there is no capacity elsewhere in the team,” Smith says.

Hammond says external lawyers need to demonstrate enthusiasm and a “desire to get into the nitty-gritty of the commercial and operational sides of business”.

She explains: “You need to want to be challenged, and to be OK with being uncomfortable and in unfamiliar territory on a regular basis. And you have to be approachable and gain the trust of the business.”

Wilson says the lawyers he chooses to fight his battles outside of the business have to be “proactive, cost-effective and provide work product that we don’t have to rewrite for the business.”

“They have to invest in their relationship with us and understand our business and our risk appetite,” he adds. “They have to be someone you actually want to pick the phone up and call.”

English test

Externally, Hogan Lovells and Blackstone Chambers earned a good track record representing Uber when the High Court ruled the private hire company’s app was legal under the legislation governing taxis in London in 2015.

Hogan Lovells was on call again to mount a judicial review of Transport for London’s (TfL) new rules for private hire cars. Uber says the rules have become too strict and is challenging requirements such as written English tests for drivers, locating its customer service call centre in London, extending insurance for drivers and having to alert TfL of changes to its business model or app. The challenge was successful and a hearing is expected to take place in December.

“We have applied for judicial review for four of the regulations that TfL brought in in June,” Wilson explains. Some of the measures applied to drivers and others applied to the company as a whole.

The most totemic of the bunch was a ruling that drivers would have to take an English exam if they wanted to continue operating, including written and oral tests.

According to the Council of Europe, the exam proves the “ability to express oneself in a limited way in familiar situations and to deal in a general way with non-routine information”.

“Why does a private hire driver need to be able to write an essay?” Wilson says. “It’s a high standard, which is B1-level English.”

Uber’s in-house lawyers are not just fighting against the new provision because they consider it unfair. They also point out that drivers from certain countries, where English is considered the primary language, are exempt from the exam.

“That’s directly discriminatory if you come from other countries,” Wilson says. “We challenged that.”

Car owners who temporarily work as Uber drivers will also be affected by TfL’s new terms, because they will have to pay private hire insurance on a yearly basis, whether they are working the entire year or during a fixed period.

“This insurance is far more costly,” Wilson explains. “If you take a break you still have to pay a lot of money and you’re not going to make any money during that time.”

Other new TfL requirements included the capability to handle telephone complaints from the company’s operating centre in London, which Uber’s injunction has delayed until at least December 2016, and a requirement to “seek pre-approval” of any changes to its business model before implementation.

“This is a very undefined requirement, so we challenged it because it will slow down the progress of the company,” Wilson says.

Uncharted territory

“I thought being an in-house lawyer would be the same as being in private practice, but without the all-nighters,” says Smith. “There are a few more differences than that.”

“We’re always busy. All of the time,” Wilson says. “I encourage the team to constantly try find alternative methods of ensuring the day-to-day matters can be handled, whether through the use of technology – such as automated contracts – playbooks or training teams. By replacing what we do today, we can focus on the future needs of the business and the more strategic issues.”

The challenges are all resource-driven – in a business growing as fast as Uber in uncharted territory, the demands on the legal team are immense, Fletcher says. “Prioritising and ensuring considered advice is given even under time pressures are key. The advantages are great, though – how many other in-house lawyers can say they truly shape the direction of the business they work in every day? And the opportunities for progression are obvious – being part of a small team at the start means you have invaluable experience which can be used as the legal function grows.”

Smith, who was the last arrival, says that being in a small team means there are more opportunities to get to know, and learn from, much more senior lawyers.

“I don’t think a lawyer of my level would have had dinner with the global GC if this team was much bigger,” she adds.

They may not be that small for much longer, as Wilson hints at the likelihood of growing the in-house team in the near future – “probably a specialist employment lawyer for the UK, Ireland and Nordics”.

The team looks busy for the time being, with the TfL hearing in December, the rollout of UberEATS and the UK work involved in putting together Uber’s global panel later this year. But that doesn’t mean they are not looking out for new projects.

Wilson jokes about the company launching UberCopter across London after helicopter flights were trialled during a festival in the Nordics. The downside? Barely anywhere to park.

“But just imagine the glamour,” he laughs.

To the chopper!