Deliveroo riders

The courts have heard a number of cases in recent times about the status of people working for various organisations. The Supreme Court has heard the most recent of these, this time considering the status of riders working for the food delivery company, Deliveroo.

A person's employment status is important because a person who is not a 'worker' or employee will not have the full range of employment rights available to millions of others. This is of particular concern to those working in the so-called 'gig economy'. The UK government's working definition of the gig economy is, 'participants who trade their time and skills through online platforms (websites or apps), providing a service to a third party as a form of paid employment'.

The key point is that positions are often temporary or short term. The government website states that 'a person is generally classed as a 'worker' if:

• They have a contract or other arrangement to do work or services personally for a reward (a contract can be written or unwritten).
• Their reward is for money or a benefit in kind, for example the promise of a contract or future work.
• They only have a limited right to send someone else to do the work (subcontract).
• Their employer has to have work for them to do as long as the contract or arrangement lasts.
• They are not doing the work as part of their own limited company in an arrangement where the 'employer' is actually a customer or client.

Workers are entitled to certain employment rights, including:

• getting the National Minimum Wage
• protection against unlawful deductions from wages
• the statutory minimum level of paid holiday
• the statutory minimum length of rest breaks
• to work no more than 48 hours on average per week or to opt out of this right if they choose
• protection against unlawful discrimination
• protection for 'whistleblowers' who report wrongdoing in the workplace
• not to be treated less favourably if they work part time.

All employees are workers, but an employee has extra employment rights and responsibilities that do not apply to workers who are not employees.

The Deliveroo case is interesting because the Independent Workers Union of Great Britain brought the case. If the Deliveroo riders were 'workers', the Union would be able to negotiate with Deliveroo on their behalf to improves their workings conditions. If they were not classed as workers, no such collective bargaining could take place.

The Supreme Court held that the riders were not workers. One of the key reasons for this finding was that the Deliveroo riders had an unfettered right to appoint a substitute – meaning that they could ask someone else to do their deliveries for them. The Court found that: 'Such a broad power of substitution is, on its face, totally inconsistent with the existence of an obligation to provide personal service which is essential to the existence of an employment relationship.'

Other factors of relevance to the status of the riders are that:

• Riders did not have to carry out any deliveries at all.
• Riders did not work within specific working hours. They operate if and when they choose.
• Their place of work is not specified or agreed.
• Riders start and stop when they choose.
• Remuneration depends on whether riders choose to make deliveries and how many they make.
• Deliveries are not necessarily or typically their sole or principal source of income. Even where they are, a goodly proportion may earn from Deliveroo's direct competitors, potentially by undertaking the competitor's work in preference.
• There is no entitlement to weekly rest and annual holidays.

Employers should scrutinise their employment contracts and circumstances carefully in the light of the case. Specialist employment advice should be considered.

To discuss this or any other employment matter, contact us.