Deliveroo riders do not have right to unionise, UK court rules

Deliveroo riders are “self-employed” and do not have the right to organise via a trade union, the UK Court of Appeal has ruled.

The court dismissed the latest legal appeal by the Independent Workers’ Union of Great Britain (IWGB), which has been fighting since 2017 to have Deliveroo riders classified as workers rather than self-employed.

The decision upheld three previous rulings made by the Central Arbitration Committee and High Court, finding that Article 11 of the European Convention on Human Rights – which protects the right to form and join trade unions – does not apply to Deliveroo riders because they do not have to conduct the work personally and are allowed to arrange a substitute.

However, Lord Justice Underhill conceded that the ruling could be seen as “counterintuitive”, because “it is easy to see that riders might benefit from organising collectively to represent their interests, as against Deliveroo”.

He said that while Deliveroo riders do have the right to organise under Article 11’s “more general right of freedom of association”, they do not have the right to do so under a trade union specifically.

In the ruling’s conclusion, Mr Justice Coulson agreed that the decision “may seem counterintuitive”, adding: “I quite accept that there may be other cases where, on different facts and with a broader range of available arguments, a different result may eventuate.”

In response to the ruling, the IWGB said it will continue to organise with Deliveroo riders while it considers its legal position.

“The judgment recognises that riders would benefit from organising collectively to represent their interests and admits that the conclusion reached in the judgment might seem counterintuitive,” said Alex Marshall, IWGB president and former courier.

“We will now consider our legal position, but one thing is for sure: we will continue to grow in numbers and fight on the streets until Deliveroo gives these key worker heroes the pay and conditions they more than deserve.”

Marshall added that despite riders being on the frontline of the pandemic, “and even declared heroes by their employer”, they have been working in increasingly unfair and unsafe conditions.

“The reward they have received for their Herculean effort? Deliveroo continuing to invest thousands of pounds in litigation to silence workers’ voices and deny them the opportunity to negotiate better terms and conditions,” he said.

In February 2021, the UK Supreme Court ruled that Uber drivers should be classified as workers rather than self-employed individuals, entitling them to better workplace conditions and protections for the first time.

This included the right to be paid the national minimum wage, to receive statutory minimum holiday pay and rest breaks, as well as protection from unlawful discrimination and whistleblowing.

However, Lord Justice Underhill said that the Uber case – which largely revolved around UK-specific employment law – had no bearing on this case because it did not engage Article 11, adding that unlike Deliveroo, “Uber did not rely on any substitution clause”.

Commenting on the basis of the appeal being Article 11 rather than domestic law, James Farrar, co-claimant in the Uber case and general secretary of the App Drivers & Couriers Union (ADCU), said: “The ruling is a setback but is by no means terminal. The truth is, workers don't need the permission of the courts, the state or an employer to organise in a trade union and build their collective power. After years of promised reform, workers are now taking matters into their own hands and, as a result, we are seeing record growth in membership.

“The stock market was ebullient after the Court of Appeal ruling but gig economy investors are only fooling themselves if they think worker power has been suppressed as a result. The ruling, ironically, is turning out to be a useful recruitment sergeant for the ADCU.”

Pointing to a recent investigation by the Bureau of Investigative Journalism, which revealed that some riders were making as little as £2 an hour, Marshall added: “Is this the kind of pay workers would accept if they really were their own boss? It appears that when Deliveroo talks about flexibility and being your own boss, it is talking about the flexibility of choosing when to make poverty wages and work in unsafe conditions.”

A Deliveroo spokesperson said UK courts have now tested and upheld the self-employed status of Deliveroo riders four times.

“Our message to riders is clear: we will continue to back your right to work the way you want and we will continue to listen to you and respond to the things that matter to you most,” the spokesperson said.

“Deliveroo’s model offers the genuine flexibility that is only compatible with self-employment, providing riders with the work they tell us they value. Those campaigning to remove riders’ flexibility do not speak for the vast majority of riders and seek to impose a way of working that riders do not want. Deliveroo will continue to campaign for companies like ours to be able to offer the full flexibility of self-employment along with greater benefits and more security.”

Seb Maley, CEO of tax and employment advisory firm Qdos, said the decision was a “big blow” to riders and other workers in the gig economy, and showed the Uber decision may not have set a precedent after all.

“The case exposes the confusing nature of employment law, which leaves millions of people in no man’s land, unsure of whether they are self-employed, a worker or employed,” he said. “Like the recent Uber case, it also proves that making well-informed employment status decisions that all parties agree to from day one is vital.

“The riders could provide a substitute, which was key in them being seen as self-employed. It means they didn’t deliver their services personally, as an employee does. But that’s not to say just having the right to sub in someone else shows a person is self-employed. A host of factors must be considered before employment status is set.”

Andy Chamberlain, director of policy at the Association of Independent Professionals and the Self-Employed, warned that the gig economy is an “untenable mess”, adding that government must step in to clear these issues up.

“We cannot persist in a situation where the only way to show someone’s self-employed status in the UK is through the courts,” he said.

“We urge government to step in and clear the confusion in the gig economy, which arises from the fact that while UK law clearly defines worker and employee status, there is still no definition of what it is to be self-employed.

“We believe the only way to resolve this is to write a statutory definition of self-employment into UK law – not only to secure the rights of people who should properly be classed as workers, but also to protect the freedom of legitimately self-employed people.”

In August 2020, the Centre for Employment Relations, Innovation and Change at Leeds University Business School found that, from an analysis of 527 gig economy-related protest incidents between 1 January 2017 and 20 May 2020, “the company with most incidents was Deliveroo, which accounted for more than a quarter of all protest events (28.5%)”.