Insights

Nighat Sahi

Published 8 December 2023
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Deliveroo Riders Are Not in an Employment Relationship With Deliveroo

In the recent Supreme Court decision of Independent Workers Union of Great Britain v Central Arbitration Committee, the court considered whether Deliveroo riders were entitled to benefit from and join a trade union under Article 11 of the European Human Rights Convention. Only those in an ’employment relationship’ are entitled to do so and therefore the issue was whether Deliveroo riders are in an employment relationship with Deliveroo.

Background

A number of Deliveroo riders had joined the Independent Workers Union of Great Britain (IWGB), an independent trade union. The riders wanted IWGB to negotiate on their behalf with Deliveroo to improve their working conditions. Deliveroo refused to enter into collective bargaining negotiations with the Union.

IWGB, therefore, made a formal request (pursuant to the Trade Union and Labour Relations (Consolidation) Act 1992) to Deliveroo to recognise it for collective bargaining. Deliveroo refused and IWGB made an application to the Central Arbitration Committee (CAC). The CAC is the quasi-judicial body which has power to order an employer to recognise a union and engage in collective bargaining if certain conditions are met. One of those conditions is that the people in respect of whom the union wishes to be recognised are “workers”. Having been unsuccessful before CAC, the IWGB applied for judicial review. IWGB’s case was dismissed by the High Court and Court of Appeal, so they appealed to the Supreme Court.

The issues

The main issue for the Supreme Court to decide was what constitutes an “employment relationship” for the purposes of Article 11. The IWGB application was based on the argument that although riders do not fall within the domestic definition of “worker”, there is an issue as to whether they fall within the class of people with rights concerning trade union membership under Article 11.

The supplier agreement

The contract between Deliveroo and its riders is a non-negotiable ‘supplier agreement’. Riders are described as independent contractors. There is no obligation on Deliveroo to provide work and no obligation on the rider to be available or to accept jobs. Riders may substitute drivers without needing approval.

Other notable aspects of the supplier agreement were that riders are not prevented from also working simultaneously for competitors, the riders use their own equipment, there is no specified or agreed place of work and no periodic payments.

The decision

The Supreme Court confirmed that personal service is an essential feature of the concept of an ’employment relationship’ under Article 11. In this case, the almost completely unfettered right for riders to substitute meant that there was no obligation to provide personal service and therefore no employment relationship. The other aspects of the supplier agreement as listed above were also considered relevant. 

The court also confirmed that Article 11 does not include a right to compulsory collective bargaining, and it would not be a breach of Article 11 for a state to decline to legislate for compulsory collective bargaining.

Comment

An interesting fact about this case was that shortly before the hearing in front of the CAC, Deliveroo made some significant changes to the terms of the supplier agreements including the introduction of the substitution clause and removing a requirement for the riders to wear Deliveroo’s branded livery. The CAC based its ruling on these new terms and concluded they were genuine.

Furthermore, between the hearing before the CAC (in 2018) and the Supreme Court decision in November 2023, came the Supreme Court decision in Uber (that Uber drivers must be treated as workers rather than self-employed). That decision was made in a different legal context although the Supreme Court described Uber and the employment status cases that preceded it as “instructive”. However, the current decision certainly feels at odds with the trend of recent decisions in respect of the gig economy.  There is inevitably going to be further legal scrutiny in this area.  

If the findings of this decision may affect you or you would like advice and assistance in relation to an employment or workers situation, please get in touch.

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