Lewis Silkin successful in Deliveroo Court of Appeal rider status challenge
24 June 2021
By a unanimous 3-0 verdict, the Court of Appeal has upheld the High Court’s dismissal of a judicial review of a finding by the Central Arbitration Committee that Deliveroo riders are not “workers”. The Court ruled that the riders are not in an “employment relationship” for the purposes of European law.
Commenting on the decision, lead Partner Colin Leckey said “We are delighted to have succeeded once again in establishing that Deliveroo riders are self-employed independent contractors. The Court of Appeal has emphatically upheld the findings of the High Court, even after considering the effect of the recent Supreme Court decision in Uber v Aslam, which found that Uber drivers were workers. In the words of Lord Justice Coulson, the finding that Deliveroo riders were not in an employment relationship for the purposes of Article 11 of the European Convention on Human Rights was the “inevitable result” of the CAC’s finding that riders’ substitution right was genuine.”
Key findings of Lord Justice Underhill, who gave the lead judgment, included:
- The riders were not in an employment relationship with Deliveroo for the purpose of article 11 of the European Convention on Human Rights: the CAC was entitled to find that the unfettered and genuine right of substitution that operates both in Deliveroo’s written contracts and in practice meant that riders were not under an obligation to provide services personally, which was plainly a material factor;
- An obligation to provide personal service was not a “parochial peculiarity” of English law: on the contrary, it was a central feature of an employment relationship as ordinarily understood;
- Other features of Deliveroo’s relationship with its riders, including the absence of specific hours, the absence of any requirement to do any work at all, and the fact that riders provided their own phone and bike, may have been sufficient to find they were not workers even without substitution;
- The recent Supreme Court decision in Uber v Aslam was considered but held not to be relevant, as it was not about personal service;
- Even if the Court was wrong and riders did fall within Article 11 it did not necessarily follow that they were entitled to seek compulsory recognition given their virtually unlimited right of substitution, the fact they had no obligation to work at any particular time, and their freedom to work for a competitor.
Supporting the lead judgment, Lord Justice Coulson held that the outcome was “the inevitable result” of the fact findings of the CAC, and in particular the conclusion that the substitution right was genuine. Permission to appeal to the Supreme Court has been refused.
Lewis Silkin Partner Colin Leckey, supported by fellow Partner David Hopper, acted for Deliveroo. The Firm instructed Chris Jeans QC and Tom Cross of 11 KBW. The Firm was previously instructed by Deliveroo’s Head of Employment Law and Commercial Litigation, Tarun Tawakley, who returned to Lewis Silkin as a Partner in April 2021. Tarun, whose arrival was a further boost to the firm’s highly regarded employment litigation team, continues to work with the client.
The IWGB was represented by Harrison Grant and instructed John Hendy QC, Katharine Newton and Madeline Stacey of Old Square.