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Union seeks to appeal decision classing Deliveroo drivers as self-employed

13 Feb 2018 By Marianne Calnan

Independent Workers Union faces ‘high bar’ to overturn ruling, say lawyers

The Independent Workers Union of Great Britain (IWGB) has lodged an application to challenge a decision by a London court that the Deliveroo drivers it represents are self-employed, which some lawyers say it will face a “high bar" to overturn.

On 14 November 2017, the Central Arbitration Committee (CAC) ruled that the food delivery app’s riders were self-employed and not workers, because they could ask other drivers to take their place on jobs. 

The IWGB applied for a judicial review to the High Court yesterday (12 February), and is representing several dozen Deliveroo drivers.

The union argues that the CAC incorrectly interpreted the law during its ruling, which meant that its drivers are not legally entitled to employment rights such as the national minimum wage, holiday pay or collective bargaining rights. 

It added that no evidence was heard regarding the substitution clause being correctly used, and that the CAC “erroneously ignored the relevance of evidence that Deliveroo’s substitution clause was putting the company in breach of regulatory requirements surrounding health and safety and food safety”.

Nick Elwell-Sutton, employment partner at Clyde & Co, said the CAC’s ruling “clearly concluded that Deliveroo drivers were entitled to appoint substitutes, and that they did so in practice. The decision is detailed and well-reasoned. I would not be surprised if the court refuses leave for judicial review.”

James Medhurst, associate at Fieldfisher, said it would be “tough” for the union to succeed in its judicial review because cases concerning employment status are heavily dependent on the specific factors in each case. “It’s unlikely the review will be successful. I’d be very surprised if it was, but there is always a chance,” he said.

Medhurst added that cases brought about gig economy employers and work have a key part to play in “clearing up law in this area, to help boost understanding of what the principles are. This decision will certainly help with that.”

Jason Moyer-Lee, the IWGB’s general secretary, said the union would not “stand by idly while Deliveroo continues to deprive its workers of their rights because they successfully gamed the system, won on a technicality – and benefited from a legally questionable tribunal decision”.

According to a Deliveroo spokesperson, the CAC’s decision was “correct” and said it was “confident” its decision would be upheld. 

“This was a victory for all riders, who have continuously told us that flexibility is what they value most about working with Deliveroo. This is being pursued by a union that does not represent the riders it claims to speak for. Riders want the freedom to choose when and where they work,” the company added.  

“The IWGB wants to remove that flexibility and are attempting to fundamentally alter how riders work via the backdoor. Deliveroo is committed to defending the creation of the well-paid flexible work our riders want and enjoy.”  

The decision, however, came just days after a separate Employment Appeal Tribunal ruling on 10 November 2017 that Uber drivers are workers and not self-employed – and are therefore entitled to employment rights including paid holiday and the national minimum wage. 

Although the facts were different, that eagerly awaited judgment saw Uber lose its appeal against a ruling that its drivers are workers. The landmark decision was one of several longstanding rows over the gig economy business model, under which drivers are classed as self-employed and not entitled to the same employment rights as the business’s full-time permanent staff.

These legal battles come alongside the Taylor review, published in July 2017, in which Matthew Taylor made recommendations to the government on modern working practices, including the issue of employment status. 

His recommendations included the creation of a right to allow those who have worked on a zero-hours contract for 12 months or longer to request fixed hours – that better reflect the actual hours they have worked – from their employers.

The government’s response to the Taylor review, published on 7 February, revealed its cautious approach to changing the gig economy. The government confirmed that it would conduct consultations with businesses regarding how to make the employment status rules for employment rights and tax clearer for individuals and organisations by its 1 June deadline. 

Elwell-Sutton added: “Employers, workers and contractors alike will be hoping the government's latest consultations will provide some much-needed clarity.”

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