The latest challenge to the self-employed status of Deliveroo riders has failed following the High Court’s dismissal of the Independent Workers Union of Great Britain’s (IWGB) judicial review claim.
The IWGB, a trade union, sought to challenge the previous ruling of the Central Arbitration Committee (CAC) which found last November that Deliveroo riders are not workers for the purposes of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) and therefore cannot benefit from the collective bargaining arrangements provided for under that legislation.
Deliveroo is an app-based takeaway delivery service and the riders, after successfully completing an application form, telephone interview and criminal record check, supply their own transport and mobile phone and pay £150 for an equipment pack which includes branded materials. Riders can then accept work through the app as and when they choose; there is no requirement for Deliveroo to offer work and no obligation on the riders to accept work. It is designed to be the ultimate means of flexible working.
Additionally, and a key factor in the gig economy case law to date, riders are allowed to provide a substitute of their choosing to carry out jobs on their behalf. Whilst the CAC struggled to understand why a rider would need to appoint a substitute, it held that personal service is a fundamental element of an employment relationship (and is explicitly set out in the definition of ‘worker’ under TULR(C)A). On this basis, it held that riders could not be deemed workers capable of being recognised by a union and entitled to benefit from the collective bargaining rights under the legislation.
In its challenge, the IWGB argued that it should be recognised by Deliveroo for the purposes of collective bargaining for its riders, which would allow it to bargain for, amongst other things, their terms and conditions and holiday pay. It alleged that to prevent this was in breach of the riders’ human rights under Article 11 of the European Convention on Human Rights, which explicitly gives individuals the right to join trade unions.
In the first case to look at gig worker status in relation to Article 11, the High Court rejected the judicial review challenge and held that Article 11 was not engaged as riders are not in an employment relationship with Deliveroo. Further, it held that even if Article 11 had been engaged, the exclusion of non-workers under TULR(C)A is justified in its aim of limiting the cases in which collective bargaining applies and this provides a valid exemption from Article 11.
This is unlikely to be the last we hear on the subject of employment status and the gig economy. The IWGB has already confirmed its intention to appeal the High Court’s decision, which it sees as denying Deliveroo riders, and presumably, others operating within the gig economy, basic worker rights.
Read more about the gig economy in the UK and gig economy workers’ rights by reading Chirs Cook’s article.
