Deliveroo drivers found not to be workers

Deliveroo drivers found not to be workers
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Peninsula Team, Peninsula Team

(Last updated )

The Supreme Court (SC) had to consider in this case, IWGB v Central Arbitration Committee, whether certain Deliveroo drivers were classed as ‘workers’ or self-employed.   

The Independent Workers’ Union of Great Britain (IWGB) made a formal request for trade union recognition to Deliveroo as it sought to negotiate pay, hours and holiday rights with Deliveroo on behalf of the riders. Deliveroo rejected the request as the riders engaged by them were self-employed and not workers, and trade union recognition is not available to the genuinely self-employed. The IWGB then applied to the Central Arbitration Committee for statutory recognition.

The CAC had to firstly decide whether the riders were workers as defined by the statute. As part of the contractual arrangement, riders were under no obligation to log on to the Deliveroo app, they could allocate themselves as “unavailable” at any stage and could reject or ignore any jobs without penalty. There were also substitution clauses where the rider could, without obtaining any prior approval, arrange for another courier to perform their work before, or after, accepting specific jobs. There was no policing of the substitution right by Deliveroo and the rider themselves would be held responsible for ensuring the substitute was sufficiently skilled to carry out the job.

Although the CAC recognised substitution in practice was rare, because riders who did not want to carry out jobs could simply not log on or make themselves available, it found Deliveroo riders actually carried this out in reality. As the substitution right was genuine, unfettered and being operated in practice, the riders were not undertaking to do work personally. Therefore, they were not classed as workers and the claim for recognition was not accepted.

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The IWGB sought to challenge this decision via the judicial review process and took the case before the Court of Appeal who upheld the decision made by the CAC.

It was then appealed to the Supreme Court. Applying the usual tests to determine status, the court rejected the argument put forward by the IWGB and held that the riders could not be workers. This was because they did not have specific hours of work, could work elsewhere, including for rivals, and could appoint a substitute to carry out their work for them. This, the court said, was “fundamentally inconsistent with any notion of an employment relationship”.

Nevertheless, the court pointed out that there was nothing in law to stop the riders joining together and forming a union, or joining an existing one, however their employment status prevents them from forcing Deliveroo into collective bargaining under UK law as that requires a certain number of employees in a bargaining unit before the process of statutory recognition can be started.

This case shows the importance of having well-drafted substitution clauses and ensuring, if individuals are self-employed, they have a genuine right to substitute themselves. It also shows the importance of adhering to the terms of the contract and ensuring that the rights under it are genuinely available to those working under it.

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