In a surprise setback for trade unions attempting to organise the ‘gig’ economy, a London tribunal has ruled that Deliveroo riders are self-employed contractors, not ‘workers.’ This means that the riders do not have basic rights to minimum wage, holiday pay, and health and safety protections. They also have no right to unionise.
The case involves the Independent Workers Union of Great Britain (IWGB), a trade union that has had success organising precarious workers such as Uber drivers, bicycle couriers, and porters and cleaners in London universities. They petitioned the Central Arbitration Committee (CAC) in November 2016 when Deliveroo denied the union’s request for recognition and to collectively bargain on behalf of riders in the Camden area of London. Deliveroo said that they dismissed the IWGB’s request for recognition because its riders could not be unionised. Why? The riders, said Deliveroo, were self-employed, not workers for the company.
Deliveroo riders work on bicycles or motorised scooters, collecting food from restaurants to deliver to customers’ homes. Riders accept assignments by logging on to a ‘Deliveroo rider app’ on their smartphones. Customers can track the progress of their orders through GPS on the consumer-facing version of the app. Like Uber, Deliveroo has been hailed as an archetype of the new on-demand economy. Now operating in 150 cities, Deliveroo has been declared a ‘unicorn’ start-up valued at more than $1 billion. Central to Deliveroo’s business model is its flexible fleet of riders.
So, when the CAC convened in May and June 2017 to hear the petition for trade union recognition, two things had to be determined:
- First, are Deliveroo riders actually workers?
- And second, if they are workers, does the IWGB have large enough support among the Camden riders to collectively bargain on their behalf?
For many observers and labour rights analysts, the answer to the first question was clearly ‘yes’: Deliveroo riders wore branded uniforms, performed the core business of the company, and were required to pass a telephone interview, conduct a trial session, watch training videos, and have their equipment and riding competency checked by the company before commencing work. Surely, the real ‘meat’ of the issue would be found in the second question: whether IWGB had established enough support to represent the riders.
But in the weeks leading up to the trial, Deliveroo’s contracts with the riders were changed, to give the riders specific new powers over how they worked. Gone was a requirement to wear the branded uniform, and riders were explicitly allowed to use a ‘substitute’ (a friend, family member, or other associate) to make deliveries on their behalf without seeking Deliveroo’s permission. In other words, someone else—nominated by the rider—could pick up an order and deliver it to the customer. This ability to transfer work to another person conflicts with the definition of ‘worker’ in the Trade Union and Labour Relations (Consolidation) Act 1992: that the work has to be done personally by the individual, not by anyone else.
So the CAC ruled that riders are not workers, because riders can use substitutes to do deliveries for them, even though few riders actually use substitutes, as the CAC’s own report states.
It is hard to overstate how important the IWGB/Deliveroo case is. On-demand, app-based jobs are a growing part of the economy, and the CAC has just professed that a significant number of those who work in it are not workers after all. The case brings together big issues of public concern: how technology is changing the job market, how labour rights are constituted in the ‘gig’ economy, and what role older institutions like trade unions can play in this brave new world of work.
But in the end, the case seemed to turn on old-style union-busting tactics, with the employer simply changing the rules. As IWGB General Secretary, Jason Moyer-Lee, put it:
‘…it seems that after a series of defeats, finally a so-called gig economy company has found a way to game the system. On the basis of a new contract introduced by Deliveroo’s army of lawyers just weeks before the tribunal hearing, the CAC decided that because a rider can have a mate do a delivery for them, Deliveroo’s low paid workers are not entitled to basic protections.’
Sadly, for now, the second question has been lost amidst the headlines: did the IWGB have enough support among the Camden riders to be recognised as their union? On this issue, the CAC said yes:
‘…we would have found that a majority of the Riders in the proposed bargaining unit would support the Union’s bid for collective bargaining on pay, hours and holiday.’
This finding is, in itself, a victory, though a bitter one. With companies like Deliveroo that maintain a large and flexible pool of riders to deliver their services, it is a challenge for a trade union to achieve 10% membership, let alone majority support. But given the IWGB’s past success in organising other hard-to-reach workers, this union has proven again that it has a better chance than many.
So what happens now? In the wake of this summer’s Taylor review on precarious employment in the UK, policymakers are starting to rethink old categories like ‘worker’ and ‘contractor’ which seem poorly suited for the reality of today’s economy (Deliveroo’s founder and CEO has stated as much himself). That being said, the real question is whether new categories for employment status will work in favour of $1 billion ‘unicorn’ companies, or in favour of the people delivering their services. For now, Deliveroo riders don’t even have rights to a minimum wage.
Rebecca Prentice is Senior Lecturer in Anthropology at the University of Sussex in Brighton, UK. She researches labour rights in the global garment industry and in the UK’s ‘gig’ economy. Her latest volume, co-edited with Geert De Neve, is Unmaking the Global Sweatshop: Health and Safety of the World’s Garment Workers.