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Gig economy riders have no right to union recognition, rules court

DELIVEROO riders in the "gig economy" whose work is directed via apps do not have to right to collective bargaining or the right to organise to seek union recognition, an Appeal Court has ruled.

The case was brought by the Independent Workers of Great Britain union on behalf of Deliveroo riders, who are according to their contracts "self-employed". However, the court's judgement observed that its finding was based on the very specific and "narrow" circumstances of the Deliveroo riders’ contracts, noting that other cases with similar facts may well be decided differently.

The Appeals Court ruled that Deliveroo riders were self-employed, with the right to send a substitute. Being able to send a substitute - another worker turning up in your stead if you are unavailable, is one of the tests of whether or not your are self-employed in law. Many contracts, including those given to freelance journalists who work shifts, specify that you can send a substitute. Such clauses seem in most cases to have been inserted purely to ensure that the worker stays "self-employed" and is denied some workers' rights.

But wait, who is this ‘substitute’?

Current requirements to check and provide evidence of all workers' immigration status and eligibility to work in the UK, though, would seem to make such substitutions theoretical rather than practical. Who has the legal obligation to check the substitute's immigration status? Is it the worker notionally sending a substitute, or the entity to whom the substitute is being sent?

Some activities for which a substitute is covering would also require criminal background checks such as a CRB check. The Freelance is watching with interest to see whether the "substitution" clause will eventually be challenged in the courts on that basis.

Workers can still organise

Yes, the Deliveroo riders do have the right to organise and to join a union: some of the most intensive union organising going on at the moment is among couriers and delivery riders. Article 11 of the Human Rights Act protects - for the moment - the right to "form and be part of a trade union".

But the right to union recognition and thus to make management engage with "collective bargaining" - in which a union negotiates with employers on behalf of all workers - is currently enjoyed only by "workers" and not by the self-employed.

Union recognition confers certain protections. For example, an official of the trade union that is recognised in a workplace has the automatic right to enter the workplace. Management cannot prevent them from coming into the building.

The employer has to set aside space for the union rep to carry out their duties on the workplace premises. The union rep - a Mother of Chapel or Father of Chapel in the NUJ - has the right to some paid time off in the performance of their duties. (News International, now News Corp, was so preoccupied with not being seen to give the NUJ any kind of recognition that it used to arrange meetings with NUJ reps in a hotel round the corner from its Wapping HQ.)

Having union recognition often has a knock-on effect in better conditions for freelances who work for that media outlet too. An NUJ rep with paid time off, an office and unrestricted access is better able to fight individual battles on behalf of freelances. The NUJ recently achieved union recognition at Iran International and at Open Democracy.

While the judgment on union recognition for gig economy workers is a setback, gig economy workers have had some successes of late. The Supreme Court recently ruled that some Uber drivers (but not Uber Eats riders) are "workers" in law, with rights to holiday pay and minimum wage. To that extent they were "bogus self-employed" - that is, self-employed in name only, for the convenience of the company engaging them. Some drivers stand to get compensation in five figures as a result.

Uber drivers have won union recognition since the Supreme Court judgement.

Deliveroo's stock market flotation in March was a disaster, with 30 per cent wiped off the value of its shares in the first day. Among the factors leading to such a poor performance was the fear among institutional investors over issues around the "working conditions" of its riders.

Coming so soon after the Supreme Court judgment on Uber, investors feared than any possible similar case at Deliveroo in the near future would have a significant financial impact on the company - and could harm the reputations of its investors. An investigation by the Mirror shortly before the launch showed that many Deliveroo riders were earning below minimum wage. Strikes by Deliveroo riders on the day of the launch - while not directly affecting the delivery service greatly - added to the reputational damage enough to help drive down share prices.

Money talks, and working conditions in the gig economy are having a negative impact on share prices. Improvements in the working conditions of the gig economy’s "bogus self-employed" may end up having a knock-on beneficial event on us genuine freelances.