Deliveroo riders and the fight for workers' rights

This is going to sound like a stupid question and, to a certain extent, it is: when you see Deliveroo riders out on their bikes wearing their Deliveroo uniforms and carrying the Deliveroo-branded boxes which hold the takeaway meals they deliver, do you think that each rider is running their own delivery business?

And do you think that Deliveroo is a customer of each such business?

No? Well, that is what Deliveroo will have to argue in any attempt to justify its classification of its workforce as self-employed ‘suppliers’.

By claiming that all of its riders are self-employed, Deliveroo denies them the most basic of employment rights, including the right to paid holiday and the right to receive at least the National Minimum Wage.

Leigh Day is currently advising a group of Deliveroo riders on their employment rights. We will argue on behalf of our clients that there are no reasonable grounds for Deliveroo to treat its riders as self-employed and that there are therefore no reasonable grounds to deny them paid holiday or the protection of Minimum Wage legislation.

Here are just a few of the features that we will argue show that Deliveroo is not a customer of riders’ businesses and that, in reality, riders work for Deliveroo:

• Deliveroo’s recruitment process includes an interview, a trial shift and online tests;
• Riders are required to wear Deliveroo’s uniform when they work;
• Deliveroo gives riders detailed instructions as to how and where they work;
• Riders are subject to a performance review;
• Their pay and terms are determined by Deliveroo.

Deliveroo is one of many companies who appear to feel that they can deny rights to workers until they are challenged in the courts. That is why we are representing workers in bringing these claims.

Worse, even when they are taken to the Employment Tribunal and lose, some companies including Uber and CitySprint then say that the judgment only applies to the workers who brought a claim.
In fact, if a Tribunal has held that those claimants are entitled to workers’ rights, there is a very high probability that it will find that all other workers doing the same job have the same rights.

Whilst workers are able to bring claims in the Employment Tribunal to assert their rights, given the importance of these employment protections which are intended to ensure that workers have a minimum standard of living, I would argue that there needs to be greater deterrence to prevent companies from acting unlawfully in the first place. How could this be achieved?

First, I would suggest that there should be a presumption that companies who lose an Employment Tribunal claim for the Minimum Wage or holiday pay will have to pay the Claimants’ legal costs, as they would have to do in any County Court claim (costs are rarely awarded in the Employment Tribunal). But, because of the huge imbalance of power in favour of the employer, the costs regime in the Employment Tribunal should remain unchanged for claimants.

Second, failure to pay holiday pay should be made a criminal offence, in the same way that failure to pay the Minimum Wage is a criminal offence, and company directors should be made personally liable.

Third, if a Tribunal has found that at least one claimant is entitled to workers’ rights, the company should be obliged to afford those rights to all those who do the same job as claimant, with the proviso that the company can remove those rights if, and only if, it is able to show a Tribunal that individuals doing the same job are somehow in a materially different position to the claimant and are therefore self-employed.

Fourth, trade unions should be able to challenge a company’s classification of its staff as self-employed. At the moment, the burden of making such a challenge falls on individual workers. We have seen that brave individuals do step forward but it takes time, courage and sometimes money to challenge your employer. If trade unions could bring claims on behalf of their members, this would make challenges more likely, which means that injustices are more likely to be brought to light and rectified.