In a public meeting tonight, drivers for Deliveroo will look at ways the public can support their latest challenge to the gig economy model. The drivers for the takeaway app are requesting union recognition from the company and workers’ rights.
The battle follows the high-profile Uber tribunal case, where two drivers successfully argued that they were workers and not contractors.
The Independent Workers Union of Great Britain (IWGB) says it is seeking a collective bargaining agreement to allow the union to negotiate pay and terms and conditions with Deliveroo managers. If the company ignores or rejects the request, then it may be taken to tribunal, where the union will ask for a declaration that Deliveroo must engage in collective bargaining with it.
For this to happen, the tribunal has to decide that the drivers are workers, rather than independent contractors. This means they will also be entitled to paid holiday, the minimum wage and other associated employment rights.
So, what do employment solicitors make of this latest challenge?
Tim Goodwin, associate solicitor at Winckworth Sherwood says:
“Whether you are a worker, employee or contractor is really a question of fact, not simply what your contract says. So it’s impossible to say whether the Deliveroo cyclists raising this issue are likely to be successful without knowing more about their role. In the Uber case, the Tribunal was clearly persuaded that the level of control that Uber had over its workforce, and the nature of the relationship between the drivers and the business, was such that the drivers were workers, not truly independent contractors. If Deliveroo enforces the same sorts of commercial terms on its cyclists, it could well find itself in the same position as Uber – with the same implications in terms of minimum wage, holiday pay and general workers’ rights.
“The complication in this case, however, is that here we see a union looking for formal recognition. Union recognition can involve a difficult and complex process, and if Deliveroo won’t voluntarily recognise the union – meaning that it would conduct negotiations in relation to certain terms and conditions with that union – then we could see a protracted battle between the parties as to the terms of recognition. Before we even get to that stage, though, the union will need to show that the cyclists are workers, not contractors – which may, in itself, require the Courts or Tribunals to take a view.”
Liz Stevens, professional support lawyer, Birketts LLP says:
“It would be easy to assume that following on from the recent Uber decision, the Deliveroo couriers will have a strong case for succeeding in their claim for ‘worker’ status, entitling them to both working time and national minimum wage rights.
“The Uber decision itself hasn’t introduced any new tests for establishing worker (or employment) status, but it applied existing legal authorities to a very careful analysis of the facts and Uber’s own business model. Following a detailed consideration of factors such as the booking process, responsibility for providing and maintaining vehicles, taking payment from customers and the driver rating system, the tribunal concluded that the drivers fell within the category of ‘workers’ for employment protection purposes. The tribunal dismissed the notion that Uber was simply the provider of a technology platform to put self-employed drivers in touch with passengers. It is likely (but not impossible) that any similar argument will also fail in the Deliveroo case, although the tribunal will have to undertake the same careful analysis of the facts and look in detail at how the business operates in practice before coming to its decision.
“Whether the Deliveroo case will succeed remains to be seen, but it appears that trade unions have been galvanised into tackling abuses in the so-called ‘gig economy’. It is likely that we will see these decisions appealed to the higher courts (Uber has already announced its intention to appeal), so it will be a while before we can draw any broad conclusions from these worker-status cases. However, with the recently announced inquiry by the BEIS select committee into the future world of work and rights of workers, it is possible that we will see future legislative changes to limit the apparent exploitation of the workforce in these types of evolving business model.”
Sean Nesbitt, partner in the employment team at Taylor Wessing, says:
“This is a new angle on the status debate. It would leave to one side, for now, the difficult questions about financial outcomes such as pay, holiday etc. It lets the riders focus on a key fairness concern i.e how will they get their voices heard?
“The legal process for recognition is complex, and the central battle ground will be “what is the bargaining unit?” Workers only have the right to organise if a majority of them in the unit want union recognition. It would be easier to campaign around the small geography, perhaps based on delivery postcodes, than a wide area. Unless the union can harness the power of social media and the current wave of interest to organise.”
Aaron Hayward, employment specialist at DJM Solicitors, says:
“It’s no surprise that Deliveroo couriers are taking legal steps to gain union recognition and workers’ rights, after the recent Uber case in which two drivers successfully argued that they should be classified as employees as opposed to contractors.
“The explosion of the gig economy means many thousands of workers across the UK are now engaged in temporary, casual work that doesn’t entitle them to paid holiday, minimum wage and other rights, because they are officially classified as “contractors”.
“Next week Deliveroo drivers in Camden will carry out a final push to get over 50% of drivers signed up to the IWGB unions, which will force formal union recognition from their employer. If they succeed, this will make it the first app-based employer to recognise a union in the UK. This will bring with it the potential of collective bargaining over pay and conditions, but first they must succeed in convincing a tribunal that drivers should be reclassified as employees as opposed to contractors as collective bargaining laws only apply to employees.
“This is an employment case that employers, workers and lawyers alike will be watching with interest. As we move more towards a “gig economy” based on short-term, software-driven casual work, this issue isn’t going to away anytime soon.”
Holly Cudbill, Associate Employment Solicitor at Coffin Mew, says:
“The decision by the Independent Workers Union of Great Britain (IWGB) to ask Deliveroo for trade union recognition, and to threaten it with an application to the Central Arbitration Committee (CAC), is a strange move. The CAC cannot determine the employment status of the riders and, as the workforce needs to comprise workers or employees for there to be union recognition, any application to the CAC is likely to fail.
“What is more likely is that some of the riders will seek to challenge their status as self-employed riders in the Employment Tribunal. It may be that the riders have not done this yet, as they have been put-off by the clause in their contracts which apparently prevents them from doing this; however, such a clause would not be upheld by an Employment Tribunal.
“To prove to an Employment Tribunal that the riders are workers, they would need to show that they are obliged to perform the service themselves, in other words, if they don’t feel like turning up for a shift, they can’t simply send a friend in their place. The riders would also need to show that Deliveroo has a high level of control over the way they work.
“If the riders were successful in proving that they are workers, although the decision would not be legally binding for the other riders who hadn’t brought the claim, Deliveroo would need to quickly change its contracts and working practice to make sure it didn’t find itself facing a huge bill for back pay.”
Alan Lewis, employment partner at Irwin Mitchell in Manchester, says:
“This is yet another case that will test the so-called ‘gig economy’ model of working.
“It is important to remember that the Uber case was a first instance decision. That means that it is not binding on future cases. Each case turns on its own facts and in the Uber decision, some parts of the judgment indicate that the tribunal was influenced by the huge size of the Uber undertaking.
“Views of the gig economy tend to fall into one of two camps. Some commentators believe it creates opportunities for individuals looking for lots of flexibility in their working lives. Others say it is an attack on protections for employees and that vulnerable workers are most at risk of what are seen as abusive practices.
“This is such an important debate that the Business, Energy and Industrial Strategy Select Committee has set up an inquiry to look at how we will work in the future and this will also cover issues concerning the gig economy.”