Taken for a Ride: Workers in the Gig Economy

Summary

Research areas: Collective bargaining, Delivery, Drivers, Employment status, Freedom of association, Workers

Comments on R. (on the application of Independent Workers Union of Great Britain) v Central Arbitration Committee (Admin) on whether delivery riders were “workers” with collective bargaining rights protected by ECHR art.11. Criticises the judge’s approach to the employment relationship concept under art.11 and the margin of appreciation, and proposes an approach to “personal work” consistent with the employment relationship concept.

In conclusion, how should courts interpret the personal work requirement under s.296(1)(b)? The radical strategy would be to excise “personally” from the statutory definition. The effect of this would be to relegate personal work to a relevant factor in deciding whether the other party to the contract is a “professional client” (or customer). Substitution clauses would no longer function as “terms inconsistent” with worker status. A less radical strategy would be simply to interpret the current words in a more purposive way. Let it be recalled that the worker must undertake to “perform personally any work or services”. It is not decisive that a Rider might opt at their discretion to send substitutes frequently or even once an assignment had been commenced. The relevant question is: would it have been within the reasonable contemplation of the contracting parties that the appointed Rider would never do any delivery personally during the working relationship with Deliveroo? The answer, of course, is no. If that is so, the Rider should be treated as meeting the personal service requirement under section 296(1)(b) for they have plainly undertaken to do at least some work personally. Either approach would bring the law on freedom of association back into alignment with art.11 ECHR. In so doing it would rectify a serious injustice against the precarious “self-employed” in the Gig economy.