The latest Supreme Court judgment to be handed down in relation to the so-called gig or platform economy is in favour of Deliveroo in Independent Workers Union of Great Britain (Appellant) v Central Arbitration Committee and another (Respondents). The food delivery service succeeded in the Supreme Court in proving their drivers are not in an employment relationship with the company, for the purposes of article 11 EHR. It had already been previously determined that riders are not workers within the meaning of domestic legislation.

The Supreme Court unanimously rejected the appeal brought by the Independent Workers Union of Great Britain (IWGB) after it had made a formal request to the delivery company to recognise the union for collective bargaining on behalf of riders.

This does not technically stop either the riders or the delivery company engaging in collective bargaining, nor setting up a trade union, but as there is no compulsion to do this, it effectively does.

The main point of difference in this case specifically is one of substitution. The court found that “the contract between the riders and Deliveroo gives riders a broad and virtually unfettered right to appoint a substitute to take on their jobs. This right, on its face, is totally inconsistent with there being an employment relationship”. This is contrasted with the recent decision in Pimlico Plumbers where there was no ability for substitution of an employee. 

The IWGB released a statement in which they argued that “flexibility, including the option for account substitution, was no reason to strip workers of basic entitlement like fair pay and collective bargaining rights. As a union we cannot accept that thousands of riders should be working without key protections like the right to collective bargaining, and we will continue to make that case using all avenues available to us, including considering our options under international law.”

Deliveroo, in contrast, as expected, view this as a win for flexible working, with their lawyers quoted in the Law Gazette as saying “The Supreme Court decision provides welcome certainty for platform economy companies with highly flexible operating models in which individuals have genuine freedom about whether and when to work.”

Meanwhile, drivers face increased risks from insecure work, limited rights, and no access to prevention of health and safety and occupational risks arising from road safety issues - compared to, for example, the construction industry where incidents are recorded and PPE is regulated.