Supreme Court ruling: Deliveroo riders are not employees

CAC correct to refuse a trade union’s application for recognition in respect of a group of Deliveroo riders, rules Supreme Court

21 Nov 2023| News

Deliveroo delivery riders are not employees, the Supreme Court (the UK’s highest court) has ruled.

In an eagerly anticipated judgement, the Supreme Court has said people working for Deliveroo couldn’t be considered employees because they don’t have specified hours, can work for rival companies, and can appoint someone to work in their place.

Judge Vivien Rose said Deliveroo riders did not have an “employment relationship” with the food courier company and were not entitled to compulsory collective bargaining.

Lady Rose, along with Lord Lloyd-Jones, said multiple factors, including riders being free to decline offers of work and to work for Deliveroo’s competitors, were “fundamentally inconsistent” with such a relationship.

You can read the full judgement here.

Deliveroo riders had sought collective bargaining rights at the company and the case was brought by the Independent Workers Union of Great Britain (IWGB).

They had tried to negotiate pay and conditions with the company, but were refused in 2017 as the members did not meet the definition of a worker under UK law.

The Central Arbitration Committee (CAC) had refused to accept the IWGB application on the basis that the riders were not ‘workers’ of Deliveroo within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992. Riders were not required to provide personal service and they were allowed to use substitutes.

The union’s appeal was based on the case that it breached Article 11 of the European Convention on Human Rights, arguing that the definition of ‘worker’ in the 1992 Act should have been construed to give effect to Article 11. Article 11 protects the right to freedom of association and to form and join a trade union.

Under UK employment law, workers don’t receive the full range of legal rights conferred on employees.

Just over two years ago, Uber lost its Supreme Court battle and drivers were recognised as workers, not independent third-party contractors, meaning they are entitled to basic employment protections such as the minimum wage.

In the Uber case, the judge concluded that drivers are “in a position of subordination and dependency to Uber, such that they have little or no ability to improve their position through professional or entrepreneurial skills”.

The Supreme Court has said there is nothing in UK legislation to stop riders from forming or joining a union, and nothing to prevent Deliveroo engaging in collective bargaining with it.

But its ruling added: “The issue is whether Article 11 requires the United Kingdom to go beyond that current position and to enact legislation conferring on Article 11 workers the right to require their reluctant employer to recognise and negotiate with the union of their choice.”

The IWGB said it was disappointed at the Deliveroo ruling and was considering its options.

“”As a union we cannot accept that thousands of riders should be working without key protections like the right to collective bargaining.

Whether reflected in legislation or not, couriers are joining the union in ever bigger numbers and building our collective power to take action and hold companies like Deliveroo to account,” a statement said.

Our strength lies not in court rulings but in our unity as a workforce coming together to demand change.”

A Deliveroo spokesperson said:

“UK courts repeatedly and at every level have confirmed that Deliveroo riders are self-employed, and this now includes the Supreme Court, the highest court in the country. This is a positive judgment for Deliveroo riders, who value the flexibility that self-employed work offers.”

Deliveroo added that it had agreed a “voluntary partnership agreement” with the GMB in 2021 which gave the union collective bargaining rights on pay and consultation rights, on benefits and other issues, while still recognising riders as self-employed.

The Supreme Court decision was met with dismay by employment law experts. Alan Bogg, Professor of Labour Law at Bristol University said on Twitter / X:

“The Deliveroo outcome is bitterly disappointing. Where a legal test results in the exclusion of the most precarious workers from Sched A1, there is a serious problem. It does at least narrow the ground. Article 11 TU rights are allocated to those in an “employment relationship”.”

Virginia Mantouvalou, Professor of Human Rights & Labour Law at University College, London, said:

“No better way to illustrate structural injustice at work. People in secure, standard employment contracts enjoy many rights which people in precarious work do not have. A sad day for labour rights of precarious workers following the Deliveroo judgment of the UK Supreme Court.”

And Nicola Countouris, of Professor of Labour Law and European Law at UCL said:

“Bad news for the IWGB union, as the Supreme Court held that its riders are not in an ’employment relationship’ for the purposes of A11 ECHR. The ‘substitution clause’ in their contract proved fatal to the claim.”