24 November 2023

The seven-year battle of the Independent Workers Union of Great Britain (IWGB) to protect Deliveroo riders' work rights has concluded this week. The Supreme Court has unanimously ruled that Deliveroo riders are self-employed and not legally recognised ‘workers’ of Deliveroo within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992.

In 2017, the Independent Workers' Union of Great Britain (IWGB) initiated legal proceedings against Deliveroo, aiming to secure improved worker rights for Deliveroo riders. The IWGB's application was brought before the Central Arbitration Committee (CAC), which ultimately rejected it. The CAC justified its decision by highlighting the right of Deliveroo riders to engage a substitute to perform deliveries on their behalf, was an “insuperable difficulty” with the union’s argument. Subsequently, the IWGB pursued an appeal in both the High Court and the Court of Appeal, but their appeals were dismissed on similar grounds. Undeterred, the union escalated the case to the Supreme Court, relying on Article 11 of the European Convention on Human Rights (ECHR), which safeguards the right to form and join a trade union.

Employment status determines what employment rights individuals are entitled to and their employer's responsibilities towards them. The Article 11 right to the formal recognition of a trade union exists only within the European concept of an “employment relationship”.

Deliveroo riders have a right to use another person to cover their deliveries without Deliveroo’s involvement. The Supreme Court said that such arrangements between the two parties are “totally inconsistent with the existence of an obligation to provide personal service which is essential to the existence of an employment relationship. Riders do not have to comply within specific working hours, their place of work is not specified or agreed upon and they are not required to be available. “Riders are thus free to reject offers of work, to make themselves unavailable and to undertake work for competitors.” The ruling added that “these features are fundamentally inconsistent with any notion of an employment relationship”.

This judgment provides important clarification on whether someone is a worker from domestic and European Law standpoints, providing further important guidance on who exactly has trade union rights under Article 11.

This case contrasts with the Supreme Court’s decision 2 years ago regarding Uber drivers, when it ruled that the level of control exerted by Uber over its drivers created an imbalance of power in favour of Uber. This was a deciding factor, amongst others, in their assessment of whether the working conditions and contractual terms between Uber and its drivers met the criteria for worker employment status as defined in the Employment Rights Act 1996.

Similar facts, different outcome.

Impact on unions and employers

This Deliveroo ruling, as well as the previous judgment concerning Uber, will shape the treatment of those working in the gig economy. There is more to this economy than just delivery drivers and riders. According to the UK government, it encompasses any “participant who trade their time and skills through online platforms (websites or apps), providing a service to a third party as a form of paid employment”.

Unions will pay close attention to the statement made by the Supreme Court in the Deliveroo case: “there was nothing in UK legislation to stop riders from forming their own union or joining one, just as nothing was stopping Deliveroo from engaging in collective bargaining with the union”. Any business to which the Supreme Court judgment applies will therefore be free to choose which unions it wishes to recognise and which it wishes to ignore.

For further information and advice on all employment and HR matters, please contact Dawn Gallie on 01935 846233