IWGB to take Deliveroo to Supreme Court over riders’ rights

The Independent Workers’ Union of Great Britain (IWGB) is taking food delivery app operator Deliveroo to the Supreme Court over its alleged denial of collective bargaining rights to riders.

Although a date for the hearing is yet to be set, the legal challenge will seek to establish that Deliveroo riders are workers, rather than self-employed, which under UK employment law would give them 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.

While Deliveroo and the GMB signed a voluntary partnership agreement in May 2022 – giving the trade union the right to collectively bargain on pay and represent individual riders in disputes with the company – the IWGB claimed the agreement failed to address a number of problems.

This includes the fact that riders are still classified as self-employed and are therefore still not entitled to holiday or sick pay and pensions, as well as issues around over hiring and unpaid waiting times, which the IWGB said were the biggest causes of low pay.

Although Deliveroo separately pledged to pay its 90,000 riders at least the minimum wage, this only applies while delivering an order, not from the time they log into the app for work.

The IWGB and other smaller unions condemned the Deliveroo-GMB deal at the time as “soft union busting” designed to scupper the grassroots, self-organising efforts of the company’s workers.

“It is outrageous that Deliveroo is continuing to spend hundreds of thousands of pounds fighting the IWGB in court over collective bargaining rights when it has just granted collective bargaining rights to another unrepresentative union,” said Alex Marshall, a former courier and president of the IWGB.

“Clearly, Deliveroo accepts the legitimacy of collective bargaining for couriers but is simply not prepared to engage in collective bargaining with the union that has the largest membership of gig economy couriers. Deliveroo should be investing this money in courier pay and conditions, rather than trying to silence its workers who only want a seat at the table.”

Deliveroo courier Shaf Hussain added that, since she started working for Deliveroo five years ago, fees have steadily decreased while operating costs have increased.

“At a time when I can barely pay my energy bills and the cost of living is still increasing, I find it offensive that Deliveroo has put so much time and money into denying its workers the basic right to have a collective voice,” she said.

“Management at Deliveroo clearly has no idea what it’s like to be a full-time rider, and is so scared of what we might ask for that it’ll move heaven and earth to deny us the option to negotiate. This case isn’t about them disagreeing with our demands, it’s about them plugging their ears and pretending that our experiences don’t exist.”

In response to the legal challenge, a Deliveroo spokesperson said UK courts had repeatedly found that its riders are self-employed, which they claimed “is the only status that offers riders the freedom and control they value”.

In June 2021, the UK Court of Appeal upheld previous decisions in another case brought by IWGB that Deliveroo riders are self-employed and do not have the right to organise via a trade union.

However, judge Nicholas 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”.

Another judge, Peter 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.”

The Deliveroo spokesperson added the case now being taken to the Supreme Court “focuses solely on very narrow issues related to the right to collective bargaining in the UK”, pointing out that “even in this very narrow context, the UK courts have found Deliveroo riders to be self-employed and Deliveroo fully expects this to remain the case going forwards”.

“Deliveroo is proud to offer flexible, self-employed work enjoyed by tens of thousands of riders across the country,” the spokesperson added. “Deliveroo riders can be their own boss while also having security while they work. Deliveroo was amongst the first platforms to offer riders free insurance, which we have extended to cover periods of illness and support for new parents, and our voluntary recognition agreement with the GMB Union gives riders guaranteed earnings, representation and benefits.”

Deliveroo riders organised under the IWGB previously went on strike in April 2021 over similar issues now being raised in the Supreme Court, which coincided with the company’s initial public offering (IPO).

Although Deliveroo’s float is still London’s biggest IPO since mining giant Glencore went public in 2011, it is widely regarded as a flop after shares slumped as much as 30% after a number of major investors pulled out of buying shares over concerns for workers’ rights, reducing the company’s overall valuation from £8.8bn to £5.5bn.

Other gig economy firms have also been challenged by unions over worker classifications. In February 2021, the UK Supreme Court ruled that Uber drivers should be classified as workers rather than self-employed individuals, following a legal challenge brought by private hire driver Yaseen Aslam and his union, the App Drivers and Couriers Union (ADCU).

Although Uber agreed that March to pay its UK drivers the minimum wage, it said this would only apply for the time they are assigned to trips, rather than, as the Supreme Court explicitly ruled, from when they log in to the app.

Commenting on the IWGB’s case against Deliveroo, Yvonne Gallagher, a partner and head of employment at Harbottle & Lewis, said the company was likely to be concerned at the prospect of fresh claims, especially in the wake of what was presented as a ground-breaking deal with GMB.

She further noted while the Deliveroo-GMB deal agreed a limited level of sick pay, benefits and union negotiation rights, it did so without conceding worker status to riders.

“If Deliveroo does have to go to a hearing, there is a real risk that its riders and drivers will be found to be workers, in line with the Uber ruling. If that were the case, they will be liable to pay minimum wage and holiday pay for hours worked,” she told Computer Weekly.

“The Uber judgment accepted that working time for Uber drivers could cover all time from when a driver switched on the app at the start of their working day, and not just once a job was accepted. Deliveroo may be able to differentiate, given that their journey times are typically shorter and their riders/drivers may therefore be more locally based and also working on other delivery apps, but they would have to demonstrate this.”

She added Deliveroo could find the combined efforts of two unions mean it ends up making higher offers to riders than expected: “More broadly, any IWGB action is likely to lead to an increase in their membership which may itself enhance their negotiating position.”