Difficulty delivered: Court of Appeal ruling deems Deliveroo couriers as self-employed, barring them from the right to unionise

What has happened?

A Court of Appeal (CA) ruling has decided that delivery couriers for Deliveroo are not workers and are self-employed. This sees the failure of a longstanding action since 2017 by the Independent Workers’ Union of Great Britain (IWGB), which championed the stand that these riders were workers. [1]

The CA unanimously dismissed the case and refused the right to appeal to the Supreme Court, effectively sealing the fate of the Deliveroo couriers.

What does this mean?

This decision leaves Deliveroo couriers without access to the right to unionise and negotiate as a group for better working terms and conditions. This also leaves them without the right to organise through a trade union. [2]

In arriving at its decision, the CA noted that the requirement of personal performance may be fulfilled notwithstanding that workers have a right to engage a substitute under limited circumstances if they did not want to or were unable to do the work. [3]

The CA also considered Article 11 of the European Convention on Human Rights (ECHR) that dictates the rules regarding the freedom of assembly. This includes unionisation. Lord Justice Underhill, who gave the overall judgment of the court to say that the couriers were not employees and therefore not entitled to the right to organise through a trade union, which usually gives workers a better fighting chance at achieving better working conditions. [4]

What are the impacts?

The decision shows that it is highly difficult for those in the delivery courier business to achieve “worker” status, let alone “employee” status. This precludes them from legal rights available to employees and workers, such as national minimum wage and maternity/paternity leave.

This may be viewed as disappointing and unacceptable for couriers as they are often in need of unionising for better wages and working conditions. Indeed, the returns that couriers receive appear disproportionate when taking into account the physical risk, fatigue, and meagre pay. Alex Marshall, president of the IWGB noted that these couriers “work on the frontline of the pandemic”. [5]Marshall also observed that they work under “increasingly unfair and unsafe working conditions.” [6] Moreover, some of the couriers claim to make as little as £2 an hour. [7]

However, Deliveroo has defended its employment model, arguing that “Deliveroo’s model offers the genuine flexibility that is only compatible with self-employment, providing riders with the work they tell us they value.” [8]

While the CA has had the final say, there are still improvements that delivery companies such as Deliveroo could do through providing schemes with greater benefits and security for the couriers. Given the efforts of the couriers to provide supplies and food to households in a minimal contact, stay-indoors world ravaged by COVID-19, it is suffice to say that these individuals deserve a higher employment status and better working terms and conditions.

Andy McDonald, Labour’s shadow employment rights secretary, labelled the judicial decision on Twitter as “devastating for Deliveroo drivers”. He also emphasised that “all working people should have full employment rights, protected by the law.” [9]

Therefore, this ruling also displays the urgency for the UK Government to stand authoritatively against such employment models used by Deliveroo and prioritise the financial, physical, and mental security of couriers. UK Parliament should also review the impacts and benefits of organising in trade unions. These initiatives will go a long way in preventing those in the gig economy from needing to resort to the courts for basic rights.

By Nickolaus Ng

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Footnotes:

[1] Anna Tims, ‘Gig Economy Ruling has Deliveroo riders without rights and buying their own kit’ (The Guardian, 19^th November 2017) <https://www.theguardian.com/business/2017/nov/19/gig-economy-ruling-deliveroo-riders-equipment-basic-employment-rights>

[2] Rob Davies, ‘Deliveroo riders suffer setback in court battle for right to unionise’ (The Guardian, 24^th June 2021) <https://www.theguardian.com/business/2021/jun/24/deliveroo-riders-suffer-setback-in-court-battle-for-right-to-unionise>

[3] The Independent Workers Union of Great Britain v The Central Arbitration Committee [2021] EWCA Civ 952

[4] ibid

[5] Alys Key, ‘Deliveroo shares surge higher after court rules riders are not workers’ (iNews, 24^th June 2021) <https://inews.co.uk/news/business/deliveroo-shares-surge-higher-after-court-rules-riders-are-not-workers-1069599>

[6] ibid

[7] n2

[8] n5

[9] Andy McDonald, <https://twitter.com/AndyMcDonaldMP/status/1408035184050683909>