The Deliveroo employment case shows the uncertain and fiercely disputed status of gig economy workers

Head of Employment, Neil Maclean, reveals how the Central Arbitration Committee dealt a blow to a union's bid to have Deliveroo riders defined as workers.

21 November 2017

Last week the Central Arbitration Committee (CAC) delivered its decision on the statutory union recognition application brought by the Independent Workers’ Union of Great Britain (IWGB) in respect of Deliveroo riders in North London.

A central premise to the application was an argument that the riders were engaged by Deliveroo as workers, and that most of those in the proposed collective bargaining area (referred to as ‘the Camden Zone’) were likely to support recognition.

Although the case was not being heard before an employment tribunal, the same legal principles applied: in order to establish that someone is a worker, the individual must have undertaken to perform work or services personally, and must not be in business on their own account.

Right of substitution
The CAC found that there was a right of substitution which meant that Deliveroo riders had the ability to ask someone else, a 'substitute', to deliver food on their behalf, both before and after they had accepted a particular job.

Further, evidence was presented that the right of substitution was actually used in practice, rather than existing solely on paper.

As a result, the CAC’s view was that it could not be said that the riders were undertaking personally to do the work, with the consequence that they could not be defined as workers.

Accordingly, the application for statutory recognition failed.

The Uber case
The CAC decision comes in the wake of a number of employment tribunal cases considering the rights of individuals working in the gig economy.

In particular, Uber very recently lost its appeal against a finding by the employment tribunal that its drivers were workers and therefore entitled to be paid the national minimum wage and receive paid holidays amongst other benefits.

In that case, even though Uber drivers were not obliged to accept all trips, they were expected to accept at least 80 per cent of trip requests when signed in.

In the EAT’s view, this meant that once the driver was in the relevant territory with the app switched on, they were effectively available to Uber and at its disposal.

This met the worker test and as a result of the decision, Uber drivers now have a right to be paid at least the minimum wage for each hour they are logged into the app and in the territory they are authorised to work in.

They are also entitled to receive paid holidays. Uber is considering an appeal, which would normally go to the Court of Appeal.

The Pimlico Plumbers case
However, another similar case, Pimlico Plumbers, is due to be considered by the Supreme Court and Uber may seek permission to take its appeal direct to the Supreme Court so that it can be heard at the same time.

The whole issue of gig economy workers was considered in the Taylor Review, which considered the implications of new forms of work on worker rights and responsibilities, as well as on employer freedoms and obligations.

The review produced The Good Work Report over the summer and made a number of proposals designed to improve working conditions for those working in the gig economy.

What the Taylor Review found
Taylor proposed there should be legislation and guidance defining employment status to make it easier for businesses and workers to know their rights.

The report also recommended, in relation to the test for worker status (and the rights that go with it), that the emphasis should shift from considering 'personal service' (which was the un-doing of IWGB’s claim) to “control” so as to afford basic employment protections to people who are dependent on an organisation such as Deliveroo for their livelihood.

What the Government is doing
The UK Government says it is considering Taylor’s proposals, but it isn’t being swift - no response has been forthcoming so far.

This means the current law is here to stay for the foreseeable future, and while we wait for the Supreme Court to tell us all what the current law actually is, our take-away pizzas, plumbing and taxis (amongst other services) will continue to be delivered by people of uncertain and fiercely disputed employment status.

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