The Independent Workers of Great Britain (IWGB) Union has announced plans to pursue claims previously made against Deliveroo on behalf of riders and drivers. These assert that the riders are workers for the purpose of a variety of employment statutory rights, in particular the right to union recognition, but also the right to minimum wage and paid leave.
Earlier this year, Deliveroo entered what it described as a ground-breaking agreement with the trade union GMB, which granted a number of benefits to its delivery teams, including a level of sick pay, but crucially without conceding that any statutory entitlement as workers arose.
They also offered a forum for negotiation with GMB on the terms applicable to the riders, but on what was described as a voluntary partnership basis rather than a formal recognition agreement, which would have required acceptance by Deliveroo that riders and drivers have worker status.
It has successfully defended claims for worker status in the Employment Tribunal and the Court of Appeal, but this latest move from IWGB is likely to put further pressure on Deliveroo.
In February 2021, the Supreme Court gave a landmark judgment against Uber in relation to its drivers in a claim brought in London. The Supreme Court made very clear that statutory rights aimed at protecting workers and employees who lacked the bargaining power of those to whom they provide services would be interpreted positively, so as to grant rather than limit those rights, as was the purpose of the legislation. In that case, Uber’s drivers were found to be workers as there was no claim in fact for employment status, and so that point was not considered.
The claim brought by the riders has failed to-date on the basis that they are not workers, because Deliveroo permits a level of substitution by drivers, allowing them to get another person to carry out work. IWGB will seek to argue that this does not reflect the reality of the way drivers work.
Deliveroo riders typically receive lower fees per job than Uber drivers due to shorter local distances travelled, so it may be harder in practice for them to achieve minimum wage levels from working on the app. This means that if they are found to be workers, the cost to Deliveroo could be significant. The negotiating pressure brought to bear by competing unions may lead to increased security and benefits for riders even without a formal finding of worker status. That would increase costs for Deliveroo in a competitive market.
Worker status gives rise to some other rights too, in particular the obligation to offer auto-enrolment pension benefits and the right to be accompanied at disciplinary hearings, all of which leads to a level of additional process and cost for those using the services of gig economy workers.
Yvonne Gallagher is a partner at Harbottle and Lewis