Gig economy: UK Supreme Court adds to developing case law with Deliveroo collective bargaining ruling

Lucy Trevelyan, writing for the International Bar Association

17 Jan 2024| News

Creator: Zeroincondott

In late November 2023 the UK Supreme Court ruled that a group of Deliveroo riders aren’t in an employment relationship with Deliveroo and can’t therefore access collective bargaining rights under trade union law.

The UK’s highest court found that the riders are independent self-employed contractors, rather than workers. The main basis for this judgment was that Deliveroo riders are not obliged to be available at any time or to accept jobs and can arrange substitute riders for deliveries. Therefore, there isn’t an employment relationship.

‘UK courts repeatedly and at every level have confirmed that Deliveroo riders are self-employed […] This is a positive judgment for Deliveroo riders, who value the flexibility that self-employed work offers,’ said a Deliveroo spokesperson.

However, the Independent Workers’ Union of Great Britain, which brought the case, stated that, ‘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.’

This is a significant case as it rules on whether gig economy workers enjoy the right of freedom of assembly under Article 11 of the European Convention on Human Rights (ECHR), says Aoife Bradley, Secretary of the IBA Employment and Industrial Relations Law Committee and a partner at LK Shields Solicitors, Dublin.

The limitation of the application of Article 11 to employees only will surely be challenged – despite it being consistent with previous rulings of the European Court of Human Rights (ECtHR), says Peter Talibart, former Vice-Chair for Institutions in the IBA Global Employment Institute and a partner at Seyfarth Shaw in London. ‘I do not think this debate has been finally resolved. In any event, the decision illustrates that this limitation will always be fact-dependant.’

“Employment lawyers will be aware that the question of whether access to collective representation is a universal human right remains unresolved under public international law” (Peter Talibart, former Vice-Chair for Institutions, IBA Global Employment Institute)

The UK Supreme Court, he says, discerns the principle from previous European and UK case law that ‘the category of persons who benefit from the right to form and join a trade union under Art 11 is a smaller sub-class of those described as “everyone” in the opening of Art 11(1) – who enjoy the right to freedom of peaceful assembly and to freedom of association with others conferred under that Article.’

The argument is that the ECHR limits this freedom to employees only – despite the expansive use of the word ‘everyone’, he says. ‘Whilst this may be correct, international employment lawyers will be aware that the question of whether access to collective representation is a universal human right remains unresolved under public international law.’

For Talibart, therefore, the issues behind this case are therefore important and emotive. ‘As we collectively transition into the next industrial revolution of the gig/AI [artificial intelligence] economy, lawyers will see more challenges to the relatively laissez-faire status of gig workers and their access to human rights protections,’ he believes.

The Court’s judgment in Deliveroo is in stark contrast to its ruling in Uber v Aslam, where it held that Uber drivers should be classed as workers and thus enjoy enhanced employment rights such as the national minimum wage. The key difference between the judgment in Deliveroo and most other UK gig economy cases, including the Uber ruling, is the lack of control and obligation in the relationship between Deliveroo and its riders, says Anna West, a knowledge counsel in the employment team at Travers Smith, London. ‘The riders had no requirement to accept work or be available to work, and they had an unconditional right to send a substitute in their place.’

In contrast, she says, the Supreme Court in Uber found that the drivers were under significant control, including because Uber monitors their work acceptance rates and imposes penalties for excessive cancellation. ‘This level of control was not consistent with a self-employed relationship, and they were held to be “workers”’, says West.

Interestingly, she says, the Dutch Supreme Court reached a different conclusion to its UK counterpart on Deliveroo riders, finding them to be employees. ‘It concluded that the right of substitution was of minor importance when looked at as part of the overall picture’, West explains.

In common with most European countries, the UK government hasn’t introduced laws specifically covering gig economy workers. In 2022, it published its response to a consultation on employment status, stating its belief that the current legal framework provides the right balance for the UK labour market by allowing flexibility whilst giving people certain core protections. ‘It has chosen the approach of publishing guidance rather than changing the law,’ says West.

The UK’s approach to employment rights is often seen as being halfway between the employer-friendly law of the US and the more employee-friendly rights of the European mainland, says Andrew Lloyd, an associate at Simkins. For example, in the Netherlands most employees are entitled to receive 70 per cent of their salary during their first two years of illness. In the UK, statutory sick pay is capped at £109.40 per week and it only lasts for 28 weeks.

Most European countries will draw a distinction between employees and the genuinely self-employed, adds Lloyd. ‘For example, Germany has different rules for dependent workers (similar to the English definition of employee) and independent workers (who are akin to the genuinely self-employed). The tests are similar to the UK law and dependent worker status is based on similar factors including whether the individual has a right of substitution and the level of control exercised by the “employer”.’

In the EU, political agreement on the Platform Workers’ Directive was reached in mid-December. ‘The Directive aims to improve working conditions for gig economy workers, including new rights relating to algorithmic management,’ says West. ‘Under the Directive there will be a list of criteria and if the digital labour platform meets a certain number of those criteria, the legal presumption is that it will be an employer, so its workers will not be self-employed.’

The UK, meanwhile, is looking to implement parts of another EU law, the Transparent and Predictable Working Conditions Directive – specifically the right to a statement of terms and to request a more predictable working pattern.

This article was first published on the International Bar Association website.