Deliveroo in the Supreme Court: the latest on employment status

Deliveroo in the Supreme Court: the latest on employment status

14th December 2023

The Supreme Court has confirmed earlier decisions that Deliveroo riders are not in an “employment relationship” with the food delivery company and therefore not entitled to rights under Article 11 of the European Convention on Human Rights to freedom of peaceful assembly, which includes rights to form and join trade unions (Independent Workers Union of Great Britain (IWGB) v Central Arbitration Committee and Deliveroo).

The Supreme Court emphatically endorsed the reasoning of lower courts. The essence of those decisions, now confirmed by the Supreme Court, was that Deliveroo Riders’ ability to use a substitute to perform their work was fatal to a claim for employment status. The Court also commented favourably on the high degree of flexibility given to riders and their ability to simultaneously work for competitors as supporting their conclusions on status.

The bulk of the arguments before the Supreme Court focused on complex and technical points of international human rights and labour law, and the primary application of the decision is focussed on the Riders’ ability to benefit from the European Convention on Human Rights. But of more general applicability to employers is the useful guidance from the Supreme Court on the factors relevant to its decision that the Deliveroo Riders did not have employment status. Notably, the court draws parallels between the tests for the purposes of the European Convention on Human Rights and the more commonly applied tests under UK legislation, which determine individuals’ entitlement to holiday pay, protection from discrimination and other core rights. This gives useful clarity for employers setting out the key factors to consider addressing when engaging individuals, particularly but not exclusively in the platform economy. This renewed clarity in the law may help to discourage speculative status claims.

Key factors 

  • Of crucial importance was the breadth and real-life use of the right of substitution. There were no sanctions or criticism for using the right to appoint a substitute to carry out work. Riders were able to use substitutes for profit or to allow them to work simultaneously for competitors in the platform economy.
  • There was no requirement to do any work or be available to work.
  • Riders had no set hours of work, and only worked when they wanted to.
  • They had the ability to start and stop work when they want.
  • The riders had no set place of work, having freedom to work wherever they wanted within Deliveroo’s area of operations.
  • Payment was based only on the amount of work done, there were no periodic payments which were paid regardless of work done, payments in kind, or reimbursement of travel expenses.
  • Riders had no protection from financial risk, whether in the form of insurance or guaranteed earnings provided by Deliveroo.
  • Riders tended to have multiple sources of income and the ability to work for competitors.
  • Riders used their own equipment.