DELIVEROO RIDERS ARE NOT WORKERS
The Supreme Court has ruled that Deliveroo riders are not workers in an “employment relationship” for the purposes of European human rights law.
This decision brings to an end long running litigation between Deliveroo and the Independent Workers Union of Great Britain (IWGB) which started when the IWGB made an application to the Central Arbitration Committee (CAC) for trade union recognition in respect of Deliveroo riders in London. In 2017, the CAC decided that Deliveroo riders were not “workers” within the meaning of section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 and that the application for trade union recognition could not proceed.
The IWGB applied to the High Court for Judicial Review of the CAC’s decision and subsequently appealed to the Court of Appeal and then the Supreme Court. The IWGB’s appeal was based on the argument that the CAC decision breached Article 11 of the European Convention on Human Rights (Art 11) which protects an individual’s right to join a trade union. The Supreme Court considered whether Deliveroo riders fell within the scope of Art 11. In order to do so, it was necessary for the riders to be in an “employment relationship” with Deliveroo.
"The decision provides welcome clarity on worker status and the impact of the right of substitution. It should now be easier to determine whether or not individuals within the gig economy are workers or not."
The Supreme Court concluded that the riders were not in an employment relationship as the riders that a genuine right to appoint a substitute. The Supreme Court noted that the right of substitution in Deliveroo riders’ contracts was virtually unfettered and not limited to other Deliveroo drivers. It concluded that such a broad power of substitution was “totally inconsistent with the existence of an obligation to provide personal service which is essential to the existence of an employment relationship”.
The Court said that this was sufficient to decide the issue. However, it also referred to a number of other features of the way riders work with Deliveroo which were fundamentally inconsistent with an employment relationship too. These were:
Riders did not have to carry out any deliveries at all;
Riders did not work within specific working hours. They operated if and when they chose;
Riders’ place of work was not specified or agreed but they operated where they chose;
Riders’ activity was not of a particular duration; riders started and stopped when they chose;
Riders were not required to be available;
All equipment was provided at the riders’ expense. Riders used their own cycles and mobile phones;
Remuneration depended on whether Riders chose to make deliveries and how many they made;
Deliveries were not necessarily or typically Riders’ sole or principal source of income;
There was no payment in kind such as food, lodging and transport;
There was no entitlement to weekly rest and annual holidays;
There was no reimbursement for the cost of travel; and
There was no protection from financial risk for Riders.
The next issue was whether, if riders had rights under Art 11, these rights required UK law to compel Deliveroo to engage in compulsory collective bargaining with the union. The Supreme Court concluded that Art 11 did not create any right to compulsory collective bargaining.
The Supreme Court’s judgment provides important clarification on the test of whether someone is a worker:
It resolves which cases are “sole test” cases – meaning, in deciding whether someone is a worker, all that matters is whether there is an obligation of personal performance – and which are cases where an assessment of the “dominant feature” of the relationship is helpful.
The position is now clear: wherever there is a genuine right of substitution that is the “sole test”
The “dominant feature” assessment will only apply where there is no right of substitution, or a very heavily qualified one.
Art 11 does not create any right to compulsory collective bargaining.
The decision provides welcome clarity on worker status and the impact of the right of substitution. It should now be easier to determine whether or not individuals within the gig economy are workers or not. Clearly, that is something to be welcomed.