Deliveroo riders are not workersby
The Supreme Court has ruled that Deliveroo riders are self-employed, not 'workers', in a landmark employment status case that highlighted the pivotal role of contractual terms in the employment relationship.
Deliveroo riders have become a well-known sight these days delivering takeaways to homes and offices. They are historically self-employed but, many of the riders in London have joined the Independent Workers Union of Great Britain, which is an independent trade union (the Union).
They wanted the Union to negotiate on their behalf to improve conditions under which they perform their services. Deliveroo had refused to recognise the Union or enter into collective bargaining negotiations with them.
Recognition of the Union
The Union took the case to the Central Arbitration Committee (CAC) who analysed the nature of the relationship between the riders and Deliveroo but, ultimately decided that the riders were self-employed. The High Court and now the Supreme Court have both agreed that the riders were self-employed.
What is of interest in this case, however, is the part of the Supreme Court judgment which deals with employment status and deciding whether the riders were employed or self-employed.
European Convention of Human Rights
This case was actually brought on the basis of article 11 of the European Convention of Human Rights which protects the general rights of freedom of peaceful assembly and freedom of association with others. In order to get these rights, however, there has to be an employment relationship.
Substance of the rider relationship
The Supreme Court had to decide whether the riders were workers or not and to do this they needed to look at the substance of the Deliveroo-rider relationship.
Deliveroo had re-drafted their agreement with the riders in order for it to be more appropriate for the self-employed. The court accepted this new contract but, closely scrutinised the clauses to establish whether the terms genuinely reflected the reality.
The workers had to provide their own equipment including the vehicle that they used to deliver the services, a mobile phone and third-party liability insurance. The rider was also required to ensure that the insurance covered any substitute that they used.
They were not required to wear Deliveroo branded uniform and they could work for a competitor at the same time and without requiring authorisation. Riders were also required to use food transportation equipment which met Deliveroo’s safety standards.
One of the main points of the CAC judgment was the factor regarding substitution. This was also an important part of the Supreme Court judgment. When delivering the new contracts, Deliveroo specifically drew attention to the substitution clause: “You will see that this agreement means you still have the ability to appoint another person to work on your behalf with Deliveroo at any time.”
The court found that the substitution clause was “broad and virtually unfettered…” Deliveroo stated that: “All acts and omissions of the substitute shall be treated as though those acts and/or omissions were your own. You shall be wholly responsible for the payment to or remuneration of any substitute at such rate and under such terms as you may agree with that substitute…”
In practice, the CAC had found that the substitution clause was rarely used. This was because Deliveroo made it very easy to work or not work. There was no obligation to accept work and none for Devlieroo to provide it. Despite it being rarely used, however, it had been used on occasion and on one occasion, the rider made a profit.
The previous Deliveroo contract had far more control in it, including a strict uniform policy and a different attitude toward substitutes. The CAC found, however, that both the written contractual terms and how the parties conducted themselves had changed with the introduction of the new contract. The CAC accepted Deliveroo’s submission that the new terms were permissible even if they had been introduced by Deliveroo to defeat the claim and to prevent the riders from being classified as workers.
This case proves again that the contract is all important and it's never too late to re-draft. Although, it was clear from this case that Deliveroo has worked hard to make sure that the terms of the contract were followed up in practice. They did not control the riders and there was a genuine right of substitution.
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Rebecca is the UK's most prominent thought leader and leading expert in ‘employment status’ including IR35, off-payroll working and the law involving independent contractors and the self-employed for the purposes of tax and employment law. Rebecca has run her own consultancy for the past 20 years covering all employment status issues such as...