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Self-employed status and the right to substitute

The Supreme Court has recently confirmed that Deliveroo riders do not have a right to trade union collective bargaining as they are not in an ‘employment relationship’ for the purposes of Article 11 of the European Convention on Human Rights (ECHR).

Background

Delivery riders for Deliveroo work under ‘supplier agreements’ under which they are described as independent contractors. The agreements state that there is no obligation on Deliveroo to provide work and no obligation on the rider to be available at any time or to accept jobs. The riders are also allowed to provide a substitute to accept jobs in their place. The substitute can be employed or engaged directly by the rider and does not need to be approved by Deliveroo.

In November 2016, the Independent Workers Union of Great Britain (IWGB), which represents workers in the gig economy, applied unsuccessfully to the Central Arbitration Committee (CAC) to be recognised for trade union collective bargaining for a group of north London-based Deliveroo riders.

The CAC found that Deliveroo riders were not ‘workers’ under the trade union legislation, and therefore, their application for recognition could not proceed. The CAC noted that the ‘almost unfettered right’ of substitution afforded to the Deliveroo riders was fatal to the success of the IWGB’s application.

The IWGB appealed to the Supreme Court. The appeal focused on Article 11 of the European Convention on Human Rights. Article 11 provides for the rights to freedom of association and to form and join trade unions, which only apply in situations where there is an ‘employment relationship’.

Judgment

The Supreme Court unanimously held that no such relationship exists between Deliveroo and its delivery riders. The CAC had been entitled to conclude that the ‘supplier agreements’ between Deliveroo and the delivery riders genuinely reflected the relationship.

Comment

This case is the latest in a long line of cases relating to the employment status of individuals carrying out work in the gig economy. Such claims are very fact-specific, especially in this case, as it relates specifically to union recognition.

However, this case highlights the factors that are taken into account when determining employment status, including that the existence of a ‘right to substitute’ is key in determining that an individual is self-employed.

This case also reminds us that the courts will always consider whether any contractual documentation genuinely reflects the relationship between the parties.

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