Supreme Court decides that riders are not in an employment relationship with Deliveroo

By Miriam Bruce & Cyril Lekgetho on December 11, 2023

On 21 November 2023, the Supreme Court ruled that Deliveroo riders (“Riders”) are not in an “employment relationship” for the purposes of Article 11 of the European Convention on Human Rights. The Supreme Court decision is entirely consistent with previous decisions by the Central Arbitration Committee (“CAC”), High Court and Court of Appeal.

Litigation between the Independent Workers Union of Great Britain (“IWGB”) and Deliveroo began in 2016, when the CAC rejected a collective bargaining application made by IGWB on behalf of the Riders. The CAC decided that Deliveroo riders cannot be classified as ‘workers’ under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) and so could not form a collective bargaining unit. The IWGB challenged this decision in the High Court on the grounds that the definition of ‘worker’ under s. 296 of TULRCA should be interpreted to encompass Deliveroo Riders, for the purposes of exercising Article 11 rights. The High Court dismissed this review and IWGB appealed in the Court of Appeal, where the appeal was again dismissed.

Notwithstanding its previous lack of success, the IWGB decided to appeal the Court of Appeal decision. However, the Supreme Court (“SC”) rejected the latest appeal and homed in on a number of helpful principles, including:

First, that the right to form and join a trade union under Article 11 was restricted to ‘Article 11 workers’; following criteria set out by the International Labour Organisation Recommendation No. 198 (“ILO”) on determining an employment relationship, it was found Deliveroo Riders were in no such relationship. The ILO mentions that “an employment relationship is one that should be primarily guided by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties.”

Second, the SC focussed on Riders’ ‘virtually unfettered’ power to appoint a substitute. The SC deemed this power to be wholly inconsistent with an employment relationship, as it does not satisfy the obligation to provide a personal service for the purposes of Article 11. The right to substitute was deemed sufficient to determine that Riders do not fall within Article 11’s scope. The SC noted that a Rider’s use of substitutes was not policed, nor did Deliveroo exercise its right of termination in the event of a Rider’s failure to accept a certain number of orders. The fact that Riders provided their own equipment, had no specific working hours and had full autonomy over whether they indeed carried out any deliveries at all, were among a few other principles considered. The appeal was dismissed.

The judgment of the SC is interesting for two reasons:

First, the decision will significantly impact the protections and rights available to gig economy workers when it comes to collective bargaining. This judgment means that a reluctant platform or gig economy employer cannot be forced by its gig economy workforce to recognise and negotiate with a union of the workers’ choice. Of course, as the SC commented, that “there is nothing in the UK legislation to stop the Riders from forming their own union or joining the Union…and there is also nothing to prevent Deliveroo from engaging in collective bargaining with the Union”, should they wish to ‘voluntarily’ negotiate. This means that gig economy employers will have full discretion on whether to engage with its workers in this way. We think it unlikely that companies will want to do this voluntarily, given it might hinder the flexibility which otherwise exists in dealing with this type of workforce;
Secondly, the operation of the substitution clause in this case meant that the Riders were not workers under Article 11 of the European Convention on Human Rights. It is likely that other platform or gig economy companies will look to this case to draw parallels if its workforce looks to challenge worker or employment status, whether under Article 11 or other provisions of UK law.