The Supreme Court is to consider whether gig workers who carry out deliveries for Deliveroo can join a trade union, a ruling that could have implications for other organisations with a gig economy model.
The Independent Workers Union of Great Britain (IWGB) is appealing against the decision of the Central Arbitration Committee (CAC) – later upheld by the High Court and Court of Appeal – that Deliveroo workers in its Camden zone cannot form a collective bargaining unit because they are self-employed, not workers or employees.
In 2016, the CAC refused to accept the IWGB’s application on the basis that the couriers did not meet the definition of ‘workers’ under the Trade Union and Labour Relations (Consolidation) Act 1992, because Deliveroo did not require them to carry out deliveries personally and they are allowed to appoint another person to conduct their work.
The UK’s highest court will hear the IWGB’s case on 25 and 26 April. It will argue that the CAC’s decision interferes with Article 11 of the European Convention on Human Rights, which protects the right to form and join a trade union.
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Previous courts have agreed that Article 11 protection does not apply to Deliveroo riders because they are not “limb (b) workers”.
However, last year Deliveroo signed a recognition agreement with the GMB union.
IWGB said in a statement: “Deliveroo’s announcement of its union partnership deal – in which the company claims it will negotiate with GMB over certain conditions (notably excluding pay) – stands in stark contrast with its stance that self-employed (independent contractor) status prevents riders from any entitlement to collective bargaining rights.
“IWGB is seeking the right to negotiate improvements to all aspects of couriers’ working life, in particular, pay, hours and holidays. The IWGB considers it has the right to do so under the law. The IWGB began organising with Deliveroo couriers in 2016 around pay, precarity, and safety.”
Commenting on the Supreme Court case, Joe Aiston employment lawyer at Taylor Wessing said the Supreme Court’s decision is eagerly anticipated by those in the gig economy.
“If the UK’s highest court finds that people working in the gig economy can unionise, it is likely to have a seismic impact on the gig economy sector and alter the balance of power between the tech businesses and the people who make those businesses run on the ground,” he said.
“However, it is unlikely to be the end of the matter. Any such decision is limited by the specific facts of the case and the basis on which this decision has been made. It does not take into account gig economy companies with genuinely different business models, which would arguably not be affected by this decision.”
Aiston said the Court of Appeal’s decision was an outlier in recent decisions relating to the employment status of gig economy workers, most notably the 2021 Supreme Court judgment which found that Uber drivers are workers.
He said: “Uber drivers were controlled by and dependent on Uber, but it is also the case that Uber drivers can’t substitute in the same way as Deliveroo riders can, as they are restricted both by Uber’s business model and the licensing requirements of private hire vehicles. Ultimately, the Uber case was considered under a different legal test, meaning the reasoning and judgement cannot necessarily be directly compared. Therefore, it will be interesting to see whether the Supreme Court agrees with the union that the decision in the Uber case and its focus on control should be considered in the Deliveroo case.”
A Deliveroo spokesperson said: “UK courts have repeatedly confirmed that Deliveroo riders are self-employed and this case focuses solely on narrow issues related to the right to collective bargaining in the UK. Deliveroo fully expects riders’ status to remain unchanged going forwards.
“Being self-employed, 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.”
Last month, food delivery competitor Just Eat announced plans to stop employing its own couriers and use contractors instead, resulting in nearly 2,000 job losses. The firm is consulting on plans to shift back to a gig economy model in the UK after employing its own couriers in several cities for the past few years.