Contrary to other appeal judgments upholding worker status, the Supreme Court has recently determined that Deliveroo riders are self-employed and not workers. The final appeal brought by the IWGB union against the Central Arbitration Committee’s decision rejecting union recognition was therefore unsuccessful. Had the appeal succeeded, then the IWGB union would have been entitled to conduct collective bargaining with Deliveroo on pay, hours and holidays on behalf of the Deliveroo riders in the relevant bargaining unit.
The SC decision was based on Article 11 of the European Convention on Human Rights which protects the right to freedom of association and to join a trade union. However, it only applies if there is an employment relationship (whether with workers or employees) and not if the individuals are self-employed. In determining self-employed status, the key factor for the Supreme Court was that the contract between Deliveroo and the riders provided for a genuine right of substitution (even if it was rarely used in practice). This right was totally inconsistent with there being an employment relationship. The riders were also free to work as and when they wanted and could even work for Deliveroo’s competitors. There was no obligation to accept work or carry out a minimum number of orders and they provided their own equipment. All these factors amounted to genuine self-employment rather than an employment relationship. Even if there had been an employment relationship, the Supreme Court also determined that Article 11 did not include a right to compulsory collective bargaining.
Despite this decision, other successful cases against gig economy companies upholding worker status have led to improved terms and conditions for the delivery riders/drivers. Some of these companies now provide insurance and sickness cover and one has even recognised a union including for collective bargaining purposes. Some are also offering worker status contracts in exchange for guaranteed hours and control over the routes together with holiday pay. This does, however, mean that the riders would be taxed on an employed rather than self-employed basis.
The government had an opportunity to address worker status following the Taylor Report in 2017 which recommended a new ‘dependent contractor’ status for workers who would be entitled to statutory holiday and sick pay. However, despite carrying out full consultation, the government has failed to make any significant changes. Nor has it addressed the discrepancy between employment and tax law as the latter does not recognise worker status.