Case law: Deliveroo riders are not workers with employment rights under trade union law
Employers should ensure they have clearly identified individuals who are 'workers' among their workforce, and those who are not. This is particularly so where individuals given a specific job are entitled to get someone else to do that job in their place, following a ruling that Deliveroo riders are not workers for the purposes of trade union law.
A 'worker' is entitled to a range of employment law rights, such as the national minimum wage and holiday pay, which independent contractors are not entitled to.
Under UK law, a trade union must consist 'wholly or mainly of workers'. The Independent Workers' Union of Great Britain applied to the Central Arbitration Committee (CAC) on behalf of Deliveroo riders for recognition of a trade union for them.
In the course of deciding the application, the CAC had to consider whether or not the riders enjoyed worker status. This was a much simpler and less expensive way of getting a finding on this issue than asking the Employment Tribunal for a ruling.
However, the CAC rejected the application for recognition of the union on grounds the Deliveroo riders were not workers.
The legal definition of a worker is:
an individual working under a contract (which need not necessarily be a contract of employment);
under which they are bound to personally provide work for their 'employer'; and
the 'employer' is not a client/customer of the profession or business undertaking carried on by the individual.
The CAC found that:
Riders could substitute someone else to do a particular Deliveroo job under their agreement with Deliveroo, both before and after accepting it. The provisions in the agreement were not a sham, designed to avoid worker status and the consequent employment rights.
Riders could decide not to do a job, even if they were part way through it – they just had to telephone Deliveroo to notify them.
There were no penalties or sanctions for riders if they did any of these things, provided the job got done.
This meant the riders were not bound to personally provide work for another party and were not, therefore, workers. This contrasts with recent rulings that Uber drivers, City Sprint and Excel cycle riders, and Pimlico plumbers were workers, and entitled to certain employment rights.
However, employers should note that:
While CAC decisions are persuasive, Employment Tribunals (ETs) are not bound to follow them.
The CAC appears not to have considered the multiple factors usually taken into account by ETs when determining whether an individual enjoys worker status, such as the degree of control exercised by the 'employer', any mutuality of obligation, whether the individual is integrated into the business, the individual's dependence on the 'employer's' business, the degree of financial risk taken by the individual and their opportunity to profit from the relationship.
They cannot avoid individuals being treated as workers simply by inserting a clause in their agreements saying drivers are not bound personally to do jobs for them if that is not, in fact, what happens on the ground. The agreement and the reality of the relationship must match.
Employers should ensure they are clear they have identified those who are 'workers' among their workforce, and those who are not, particularly where individuals given a specific job are entitled to (and do) get someone else to do that job in their place
Case ref: Independent Workers Union of Great Britain v RooFoods Ltd (t/a Deliveroo) TUR1/985(2016)
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