Deliveroo riders are not ‘workers’ and cannot form a collective bargaining unit, the Supreme Court has concluded in a landmark judgment that maintains the current approach to determining worker status.
The UK’s highest court dismissed the Independent Workers Union of Great Britain’s (IWGB) appeal against the rulings of the High Court and Court of Appeal in its case against the Central Arbitration Committee (CAC) and Deliveroo.
In 2016, the CAC dismissed IWGB’s application for union recognition at Deliveroo because Deliveroo riders did not meet definition of ‘workers’ under the Trade Union and Labour Relations (Consolidation) Act 1992. It said this was because Deliveroo did not require the riders to carry out deliveries personally and allowed them to appoint another person to conduct their work.
The IWGB, which sought to form a collective bargaining unit involving Deliveroo riders in Camden and Kentish Town, had argued that the CAC’s refusal to accept its bid interfered with Article 11 of the European Convention on Human Rights, which protects the right to form and join a trade union.
Both the Court of Appeal and the High Court agreed that Article 11 protection does not apply to Deliveroo riders because they are not “limb (b) workers”, and found them to be self-employed.
Deliveroo collective bargaining
Deliveroo signs deal with union GMB to cover self-employed riders
Union to take Deliveroo to Supreme Court over collective bargaining
Today (21 November) the Supreme Court unanimously dismissed the IWGB’s final appeal against the CAC’s decision.
Lady Rose said Deliveroo’s contract “gives riders a broad and unfettered right” to use a substitute, which was “totally inconsistent with having an employment relationship”, where work needs to be completed personally.
She also noted that Deliveroo riders did not have to make themselves available at a particular time like they would if they had worker status or were employed, and that Deliveroo did not object to workers working at the same time for competitors.
The Supreme Court’s judgment says: “Riders are thus free to reject offers of work, to make themselves unavailable and to undertake work for competitors… these features are fundamentally
inconsistent with any notion of an employment relationship.
“Riders do not fall within the scope of an employment relationship within article 11. The rights conferred by that article to join and to be represented by a trade union are not conferred on the riders.”
IWGB said the judgment was a disappointment after “years spent fighting a legal battle to secure riders’ bare minimum employment rights”.
“As a union we cannot accept that thousands of riders should be working without key protections like the right to collective bargaining, and we will continue to make that case using all avenues available to us, including considering our options under international law,” it said in a statement.
“Flexibility, including the option for account substitution, is no reason to strip workers of basic entitlements like fair pay and collective bargaining rights. This dangerous false dichotomy between rights and flexibility is one that Deliveroo and other gig economy giants rely heavily upon in efforts to legitimise their exploitative business models.”
In establishing that the substitution clause works as a proof that riders cannot be considered workers, the Supreme Court ruling may give rise to other gig economy companies following the Deliveroo employment approach,” – Yvonne Gallagher, Harbottle & Lewis
A spokesperson for Deliveroo said: “This is a positive judgement for Deliveroo riders, who value the flexibility that self-employed work offers. Thousands apply each week to work with Deliveroo because they want to be able to decide for themselves when, where and whether to work. We are proud to be able to offer tens of thousands of riders this flexibility alongside the security of free insurance, sickness coverage, support for new parents and a unique union recognition agreement. We will continue to listen to and work with riders to offer them the work they tell us they want.”
Colin Leckey, a partner at Lewis Silkin, the law firm that acted for Deliveroo, said: “We are very pleased to have helped secure this victory for Deliveroo, which brings to a conclusion seven years of litigation in which our client has succeeded at every stage.
“The Supreme Court decision provides welcome certainty for platform economy companies with highly flexible operating models in which individuals have genuine freedom about whether and when to work. The question of whether such persons are ‘workers’ under domestic law had long since been resolved in Deliveroo’s favour, and now arguments based on human rights law have been finally decided for the company as well.”
Important ruling for the gig-economy
Yvonne Gallagher, partner at law firm Harbottle & Lewis, said the ruling would be welcomed by other organisations with a gig-economy model.
She said: “This is a fundamentally important ruling for the gig economy, not just for Deliveroo. In establishing that the substitution clause works as a proof that riders cannot be considered workers, the Supreme Court ruling may give rise to other gig economy companies following the Deliveroo employment approach – where it fits their commercial model.
“More broadly, the case upholds the fact that national governments have considerable flexibility in defining the groups of employees and workers to whom statutory protections apply, and in many cases, the use of substitution clauses means that gig workers will not attract such rights.
“The Supreme Court took into account the fact that the substitution clause was in fact used by riders and this meant that they could not be regarded as workers. It’s important to note that simply including such a clause will not always preclude worker status. The Courts can ignore terms which they consider to be shams which do not reflect the reality of the working relationship.”
Rob Smedley, employment lawyer at Freeths, said: “The Supreme Court has held firm on the current approach to worker status and the need for personal service as the key ingredient.
“A right of substitution alongside evidence of it actually happening in practice remains the main obstacle to those trying to secure additional rights.”
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