Background: 

The background is that many riders of the respondent joined the claimant, an independent Trade Union, which sought to negotiate on behalf of riders.   The respondent refused to enter into collective bargaining negotiations.  This led to a decision by the Central Arbitration Committee focusing on whether the members were ‘workers’ within the meaning of Section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992.   Both the High Court and the Court of Appeal came to the conclusion that the riders were not workers but were, in fact, self-employed.  This was appealed to the Supreme Court.  

Outcome: 

The Supreme Court had to determine whether the riders were within an employment relationship with Deliveroo to avail of protection under Article 11 of the European Convention on Human Rights.    They held that the courts below were correct to focus on the power of the rider to appoint a substitute.   The issue being whether the right to appoint a substitute was genuine and actually exercised.   The Supreme Court held that the power to substitute was ‘virtually unfettered’ noting that it not only applied to other riders but also applied both before and after the rider had been assigned a delivery.  Such a power of substitution for a rider meant there was no obligation to provide personal service as would be required in an employment relationship.   The Supreme Court held that was enough in of itself to find for the respondent. 

The Supreme Court did go on to find other aspects pointing towards a situation of self-employment rather than an employment relationship.   This covered aspects such as no requirement to carry out deliveries, no requirement to work specified hours or a particular place of work.  Additionally, the riders used their own equipment (such as bicycles and mobile phones) and they were free to work in other jobs and for other delivery firms.  

Lastly on the impact of Article 11 and collective bargaining.  The Supreme Court noted that there was a wide margin of appreciation as to how Trade Union protections are secured.    The Supreme Court acknowledged that a statutory framework for collective bargaining was one way of achieving that aim but it was not an essential way for ensuring compliance.   

Practical Guidance for Employers: 

This is yet another case in which the employment status of individuals within ‘newer’ ways of working has been determined.   The principal point turns on the obligation of personal performance.  The wide nature of the right to appoint a substitute and the limited oversight that Deliveroo had of that meant that there was no obligation for personal performance.  This pointed in favour of the riders being classified as self-employed.  It is important to note as well the other elements that the Supreme Court took into account which will be useful for other situations involving the gig economy.   

The full case is available here:
https://www.supremecourt.uk/cases/uksc-2021-0155.html