Hello and welcome back to your weekly case law update. Last week we looked at the gig economy and how Uber drivers are workers not self-employed. This week we have another gig economy case for you, however this time it concerns Deliveroo. Their couriers were pushing for trade union recognition.

As this case concerns collective bargaining it falls outside the Employment Tribunal’s remit and is instead heard in the Central Arbitration Committee (CAC). The question in this case is:

Are Deliveroo couriers workers and thus entitled to trade union recognition?

Independent Workers’ Union of Great Britain (IWGB) v RooFoods Limited T/A Deliveroo

Deliveroo is a technology application that connects customers to restaurants and eateries. The customer finds an eatery using the app, orders food and it is delivered to their house. Deliveroo takes charges from both the customer and eatery for connecting them and a Deliveroo courier transports the food from the eatery to the customer.

Couriers for Deliveroo travel by car, motorbike, and bicycle. Each city Deliveroo operates in is divided into zones. When not making a delivery, couriers wait in the middle of the zone until a job became available. Different zones had different pay structures. In some zones couriers were paid per delivery, in other zones, there was a flat rate with additional money for each delivery.

Deliveroo couriers for the Camden area were represented by the Independent Workers’ Union of Great Britain (IWGB). Deliveroo has over 10,000 couriers and around 100 of these delivered to the Camden area of which 32 were members of the Union. This was the zone which wanted to become a bargaining unit for collective bargaining. Deliveroo alleges that Couriers operated in different zones and that over 500 couriers worked in Camden over any given month.

To have a recognised trade union, the Deliveroo couriers needed to be employees or workers. Self-employed contractors are not eligible for union recognition. To establish worker/employment status the CAC looked at the nature of the working relationship.

Couriers apply online and have a telephone interview. Successful applicants have a trial session where their bike and riding technique is assessed and they are given feedback. Couriers must then pass a training course and a CRB check. Deliveroo couriers are given Deliveroo uniforms, which the couriers pay for, including a jacket and bag, and they are given instructions on how to present themselves. Couriers are also given instructions on safe food handling and hygiene. Couriers are are tracked via the Deliveroo app so that customers can monitor the whereabouts of their order.

All couriers had an agreement with Deliveroo outlining the nature of their relationship. However, in May 2017, Deliveroo issued new contracts that allowed the couriers to send a replacement to perform their delivery, provided the substitute used the courier’s phone so the customer could track the delivery. The covering letter made it clear that couriers could work for competitors and that the uniform was optional.

The CAC held that the right to substitute yourself for another sub-contractor was genuine and meant the relationship between couriers and Deliveroo was of a self-employed nature. Therefore the couriers were not eligible for union recognition.

The takeaway point:

No, the new contract, that was issued a few months before hearing, allows couriers to substitute themselves for a sub-contractor. This, together with being allowed to work for competitors and not having to wear a company uniform, means that the alleged sham-self-employment appears to be genuine self-employment for Deliveroo couriers.

When trying to establish employment status there are several indicators that will help a Court decide which category of employment the Claimant falls into. This was outlined in our report on the Pimlico Plumbers case and is worth re-visiting.

This is one of the first cases where the big gig economy employers have succeeded in asserting that their operatives are self-employed. However, Deliveroo does face a separate Employment Tribunal claim on employment status to determine whether couriers are entitled to the minimum wage and holiday and sick pay.  The Employment Tribunal could decide that the couriers are workers.