Employment status in the gig economy has been under scrutiny for almost as long as the platforms have existed. The original model was one of self-employment, but this has been challenged successfully in many cases, including most notably in Uber v Aslam in the Supreme Court in 2021.

Last week the Supreme Court handed down judgment in a long running case involving a group of Deliveroo riders. These riders work for Deliveroo under non-negotiable ‘supplier agreements’, which describe them as independent self-employed contractors. The agreements provide for a very flexible work model, whereby there is no obligation on Deliveroo to provide work, no obligation on the rider to be available at any time or to accept jobs, and freedom for the riders to provide a substitute at any time and without the need for approval by Deliveroo. The Independent Worker Union of Great Britain (IWGB) sought recognition for collective bargaining in respect of a group of Deliveroo riders, but this was rejected by the Central Arbitration Committee (CAC) on the basis that the riders were not 'workers' and were genuinely self-employed.

The Supreme Court, in Independent Workers Union of Great Britain v Central Arbitration Committee, has now upheld this decision. It also rejected a challenge based on the right to freedom of association and to form and join a trade union, under Article 11 of the European Convention on Human Rights (ECHR). The Supreme Court found that the riders did not fall within the International Labour Organisation (ILO) definition of being "in an employment relationship" with Deliveroo. They had a virtually unlimited right of substitution – “totally inconsistent” with there being an employment relationship – and the provisions in the contract genuinely reflected the reality of the relationship. Other relevant factors were that:

  • Deliveroo did not police a rider’s decision to use a substitute and riders would not be criticised or sanctioned for doing so.
  • Contracts were not terminated for riders’ failure to accept a certain percentage of orders or to make themselves sufficiently available. The riders were free to work or not as convenient to them.
  • Deliveroo did not object to riders working simultaneously for its competitors.

Although not necessary for the decision, the Court went on to find that, even if workers are in an employment relationship for the purposes of Article 11, the Article 11 right does not include a right to compulsory collective bargaining.

The decision reinforces the principle, frequently key to employee and worker status cases, that a genuine and unfettered right of substitution will defeat a claim for employment or worker status. It also marks a contrast with the position in other European countries, where for example the Dutch Supreme Court found in March this year that Deliveroo riders qualified as employees under Dutch law, and decided just last Friday that Deliveroo also had to apply the mandatory collective bargaining agreement for the road haulage industry to them. Our Best Friend Network colleagues Stefan Sagel and Irina Timp of De Brauw's employment team litigated this case before the Supreme Court on behalf of FNV – their blog on the decision is available here: https://www.debrauw.com/articles/dutch-supreme-court-delivers-landmark-decision-deliveroo-riders-are-employees. The European Council is currently considering a proposal, adopted by the Commission in December 2021, for a Directive on improving working conditions in platform work.

Back in the UK, employment status and working patterns are likely to remain under scrutiny as we enter 2024. Workers whose working pattern lacks predictability will get the right to request a more predictable working pattern, under the Workers (Predictable Terms and Conditions) Act 2023, expected to come into force in September 2024. Further, if Labour win the general election, they have promised to abolish zero hours contracts and contracts without minimum number of guaranteed hours, and create a single status of “worker” for all but the genuinely self-employed. If enacted, these proposals could have significant implications for how employers engage their workers, in the gig economy and beyond.

They had a virtually unlimited right of substitution – “totally inconsistent” with there being an employment relationship