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Deliveroo Riders: Oh yes, they are… oh no, they’re not!
You may be forgiven for thinking that all the decisions regarding “gig economy” worker status were going in favour of the workers, but barely was the ink dry on my article about the recent Uber decision than another judgment appeared on the 14th November with regards to Deliveroo. However, this time it came from a rather unusual direction and had a very different outcome.

A case had been brought to Central Arbitration Committee (CAC), the non-departmental Government body that resolves collective worker disputes, by the Independent Workers Union of Great Britain (IWGB) on behalf of couriers in the Camden and Kentish Town districts of North London. They had wanted to establish a right to union recognition for Deliveroo riders.

Given that all the other decisions about “gig economy” workers were going against the businesses, it had been assumed that this one was likely to do so as well. However, the CAC decided that Deliveroo riders are not workers, but are self-employed. It came to this conclusion because Deliveroo had made some changes to its contracts giving riders the right to allocate a substitute to do the work for them in their contract. Therefore it declared that the riders are self-employed contractors.

This means the fast-food delivery company does not have to offer its couriers the minimum wage or holiday pay or auto-enrolment pensions, contrary to recent rulings against Uber and other courier companies that have deemed drivers are workers. It also means that the riders are not entitled to union recognition.

The right to substitution is just one of the tests looked at when employee/ self-employed or worker status is being established, but tribunals have ruled in previous cases, that it is not just what is written down that counts – but whether it really happens in practice. So if you find your business in this situation, it would not be sufficient just to change some wording – you actually have to allow this to happen.

The CAC’s judgment in this case said, “In light of our central finding on substitution, it cannot be said that the riders undertake to do personally any work or services for another party,” It went on to say, “… we find that the substitution right to be genuine, in the sense that Deliveroo has decided in the new contract that riders have a right to substitute themselves both before and after they have accepted a particular job; and we have also heard evidence, that we accepted, of it being operated in practice.”

As well as now allowing riders to bring in someone to cover their work, Deliveroo has also removed the requirement for riders to wear its branded clothing, so reducing the level of control by the organisation. This is another factor that would have tipped the balance away from worker status.

The union has said that it will review the judgment and decide the best course of action, so this is not the final chapter in the story. Watch this space!
Posted on 16 Nov 2017

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