The Uber files, a lesson in whistleblowing: ‘I have to fix what I helped to break’

The Uber files, a lesson in whistleblowing: ‘I have to fix what I helped to break’
Whistleblower Mark Macgann speaking at hearing in the European Parliament on ‘Uber files, lobbying and workers’ rights,’ 25 October 2022, credit: The Brussels Times

The former Head of Public Policy at Uber, Mark Macgann, was responsible for its unlawful lobbying and blew the whistle after he left the company.

He gave a key-note speech at a hearing last week organized by the European Parliament's Committee on Employment and Social Affairs (EMPL). The hearing on “Uber files, lobbying and workers’ rights” was attended by MEPs across the political spectrum and Commissioner Nicolas Schmit, responsible for Jobs and Social Rights.

As previously reported, the proposal for a directive on digital platform workers continues to stir up emotions ahead of the final vote in the European Parliament and the discussions between the EU institutions. The European Commission proposed in December last year a set of measures to improve the working conditions in platform work and to support the sustainable growth of digital labour platforms in the EU.

From the very start, representatives of the platforms, in particular Uber, and the workers have been lobbying EU member states, including Belgium, and the EU institutions. In February 2022, thousands of documents (‘Uber Files’) were leaked by Mark Macgann to the British newspaper The Guardian, showing how Uber had been lobbying to promote its expansion worldwide.

The newspaper published the material in July this year. This was well after the Commission’s proposal for a directive and could therefore not have influenced the Commission to act and propose the new directive.

The profile of a whistleblower

Macgann does not emerge as the typical whistleblower who blew the whistle in protest against his employer’s wrong-doing at risk of his future career. As a professional lobbyist, he was hired by Uber in 2014 to promote its business model, with unprecedented access to the highest levels of government, by aggressive lobbying.

In an interview in The Guardian, he admitted that he was part of Uber’s top team until 2017 when he left the company.

The Guardian writes that Macgann’s profile as a senior executive and political insider made him an unusual whistleblower. “So, too, does the fact he actively participated in some of the wrongdoing he is seeking to expose – and the fact it took him more than five years after leaving the company to speak out.” In the interview he said that he was partially motivated by remorse.

Whistleblowing is usually defined as unauthorised disclosure or reporting of corporate information to people and media outside the organisation (external disclosure). Whistleblowing can also take place inside the organisation when for example an employee reports to his manager that wrong-doing or malpractice has occurred (internal disclosure).

Normally, employees and employers should try to avoid and prevent whistleblowing for the simple reason that it is never in their best interest to get entangled in whistleblowing. If it happens, legislation defines three phases: internal disclosure, external disclosure to regulatory government bodies and wider disclosure to the media, police, parliament and non-prescribed regulators.

External whistleblowing should be the last resort. The degree of belief that something wrong has happened, is happening or might happen varies also with type of disclosure. The employee making the disclosure must always have a “reasonable belief” but in internal disclosure the belief need not to be correct and can be mistaken.

Unaware of wrong-doing by Uber

In Macgann’s case, he was not aware of any wrongdoing when working for Uber and that the company violated labour law in the EU member states. Raising the issue internally was therefore not in his mind. If he would have expressed any doubts he would have been fired, he said at the hearing. Besides some contacts with public authorities in 2020, he hardly knew whom to contact.

“I regret being part of a group of people which massaged the facts to earn the trust of drivers, of consumers and of political elites,” he said in the Guardian interview. “I should have shown more common sense and pushed harder to stop the craziness. It is my duty to [now] speak up and help governments and parliamentarians right some fundamental wrongs.”

“Doing what I am doing isn’t easy, and I hesitated. That said, there’s no statute of limitations on doing the right thing.” While benefitting from whistleblowing protection, working as a lobbyist for Uber took a mental toll on him. He was threatened by Uber drivers and given bodyguard protection.  According to The Guardian, his job led to a subsequent diagnosis of post-traumatic stress disorder (PTSD).

In the hearing at the parliament, Macgann underlined that he now would like the EU and governments to defend the interests of drivers and other platform workers. “The platforms have disproportionate power and are shattering democracy. Democracy is about protecting the powerless against the powerful.”

That said, he continued to defend Uber and the early days of the company. “Uber brought about a change long overdue funded by investor money. We thought that it was a noble task. In the beginning the drivers were the backbone of the company or that was what we told them. We did much for them, giving them a status which they didn’t have before.”

But already in 2015, the dream started to sour. “We had disproportionate power,” he admitted. “We used fake identities to face-book accounts of drivers who challenged their employment status. We banned the use of words such as job and employment. We withdrew driver incentives and dumped prices.”

“For a business model to succeed, some have to lose.” In Uber’s case, it was the drivers who did not earn very much considering the waiting time between drives and the deduction of Uber’s commission fee of 25 %. Things became worse, when Uber started to pay millions of euros to law firms to sue drivers who dared to demand their rights and social protection.

“I have to fix what I helped to break,” Macgann said, referring to EU labour law and its social model. His speech received standing ovations by the audience and he was hailed as a hero whistleblower.

Rebuttable presumption core in directive

Commissioner Nicolas Schmit said that he was impressed by Macgann’s speech and grateful for what he said. In fact, promoting fair working conditions for platform workers was part of his mission letter when he was appointed as Commissioner in 2019.

“The Commission has assessed the Uber Files and their connections with former Commission members and shared information with OLAF (the European anti-fraud office),” he said. He agrees with the office that MEPs should be invited to contact OLAF.

“The proposed EU directive is a game changer,” he said and underlined that the so-called rebuttable presumption is the core in the proposal. Under the directive, there is a rebuttable legal presumption that a digital labor platform, which “controls the performance of work,” is the platform worker's employer, something which has to be accepted in court.

However, he is concerned that the Council might water down the presumption. In the Commission’s proposal, at least two of five criteria need to be fulfilled by the platforms for them to be presumed to be employers. The Czech Presidency has proposed raising the threshold to trigger the presumption of employment for platform workers in a compromise text seen by Euractiv.

Asked about the rebuttable presumption and the Commissioner’s concerns at the Commission’s press conference on Monday, a spokesperson declined to comment and referred to the on-going discussions with the Council.

M. Apelblat

The Brussels Times

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