The IWGB union say they are considering their options “under international law” after “disappointing” defeat.
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In a significant legal judgement for the UK’s gig economy, the country’s highest court has found that Deliveroo riders are not workers and therefore do not have collective bargaining rights.
The Independent Workers Union of Great Britain (IWGB) had sought to open collective bargaining negotiations for its members in Deliveroo all the way back in 2016. When the British food delivery platform refused, the IWGB took the case to the Central Arbitration Committee (CAC), which has the power to order an employer to recognise and negotiate with a union.
CAC rejected the IWGB’s argument that Deliveroo’s riders have the statutory right to collective bargaining under the 1992 Trade Union Act, and an additional argument that Deliveroo were breaching article 11 of the European Convention on Human Rights (EHCR) which guarantees freedom of peaceful assembly and association. IWGB’s appeals against CAC’s judgement has brought the case all the way up to the Supreme Court, which unanimously rejected the union’s case.
The Supreme Court found that article 11 of EHCR was only applicable in the case of an employment relationship and that CAC was right to find that they are not employees. This is primarily because Deliveroo operates a substitution clause, which gives a rider the right to let someone else use their account and carry out the work on their behalf.
“This right, on its face, is totally inconsistent with there being an employment relationship,” the press summary of the judgement states. “The CAC found that Deliveroo did not police a rider’s decision to use a substitute and riders would not be criticised or sanctioned for doing so.”
Additional reasons included that riders did not have their accounts terminated for failing to accept a certain number of orders and that they could work for another platform at the same time as Deliveroo.
The judgement puts the UK at odds with the majority of courts across Europe, which have tended to find that riders are employees, including the Dutch Supreme Court last year in relation to Deliveroo specifically. It also opens up a division within UK case law between riders and ridehail drivers, as the Supreme Court found in 2021 that Uber drivers are employees.
Responding to the judgement, the IWGB said they were considering taking the case to an international court.
“The Supreme Court’s ruling comes as 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,” the union said.
They added: “Deliveroo, the ‘most protested platform in the world’, is known for some of the most extreme exploitation of workers in the gig economy. A pay review conducted in 2021 found that some riders were being paid as little as £2 per hour. Now, Deliveroo is denying riders basic employment rights due to their ability to substitute accounts.
“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.
“We know that the consequences of this irresponsible neglect of workers are grave. Just last week another Deliveroo rider lost their life whilst at work for the company – this is not the first worker who has been tragically affected by Deliveroo’s willful negligence and lack of responsibility. Low pay and a lack of protections are putting couriers at constant risk, and without change these unsafe working conditions will only lead to the needless deaths of more vulnerable gig economy workers.”
A Deliveroo spokesperson was quoted by the BBC stating that the UK had “repeatedly and at every level” found their riders were self-employed.
“This is a positive judgment for Deliveroo riders, who value the flexibility that self-employed work offers,” Deliveroo added.
Substitution clause
The substitution clause was only introduced by the company in May 2017, after IWGB had first brought the legal case forward. CAC commented on this fact in its initial judgement, stating that “even if [the company introduced the clause] in order to defeat this claim and in order to prevent the riders from being classified as ‘workers’, then that too was permissible.”
Commenting on the ruling, labour law academic and platform work expert Antonio Aloisi said: “Substitution clauses strike again. The imbalance of power at work is far from reduced, legally or practically, because of a faulty idea that ‘carefully choreographed’ solutions must be tolerated as waivers of collective bargaining rights in platform work.”
Aloisi published a paper in 2019 on the Deliveroo collective bargaining legal case, finding that the ruling in Deliveroo’s favour was “naïve”.
He added: “In Pimlico Plumbers, the UK Supreme Court stated that a similar substitution clause, drafted in a highly problematic way, could not defeat worker status, in part because the profile of the substitute was restricted under the relevant contract, thus wiping out the right to substitution. Similarly, in light of the ‘dominant features’ of the contract, Deliveroo cyclists could have been classified as workers with respect to trade union rights.”
The ruling comes just one week after a BBC investigation had revealed that the substitution clause is used for a black-market in rented Deliveroo accounts. While riders who sign-up to the app have to pass background checks, there is no such obligation for substitutes, making it easy for the account to be rented to those who do not have the legal right to work, including undocumented migrants and children.
In response to the investigation, Home Office Minister Robert Jenrick called for Deliveroo to change its substitution clause policy so that substitutes also had to pass background checks, stating the current policy was “perpetuating and enabling illegal working in our country”.
However, Yvonne Gallagher, partner at law firm Harbottle & Lewis, stated following the Supreme Court judgement that Deliveroo’s substitution clause may become the model for other gig platforms to avoid worker status.
“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,” she said.
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