In light of November's Supreme Court judgment that Deliveroo riders are not employees, Associate Andrew Lloyd discusses the rights of gig economy workers, in the International Bar Association's 'Global Insight' magazine.
Andrew explains that, in comparison with the 2021 Uber judgment, "The Uber drivers had less control over their work than the Deliveroo drivers. Uber monitored drivers' rates of acceptance and cancellation of trips and imposed penalties if not enough trips were accepted. Uber also exercised more control over its drivers including rules about the type of cars that its drivers could use and the routes that drivers took. It also imposed a rating system which was used as a tool for managing performance.
"Importantly (in part for obvious security reasons), the Uber drivers did not have an unfettered right of substitution. Uber drivers had to undergo checks before they could use the Uber app.
"In contrast, Deliveroo drivers had a lot more independence and operated more like a business. They had more discretion over when and how they worked and an individual with the Deliveroo app could appoint others to do their work."
Asked whether gig economy workers should enjoy more rights, Andrew comments, "That is a political question. It must be right that there are different rules for the genuinely self-employed. If you hire a plumber to fix your sink, you do not expect to pay that plumber sick pay or holiday pay if they don’t show up! While you can argue that some gig economy workers need more rights, it seems fair that they have different rights to employees. Flexibility often works both for the “employer” who can scale up as and when needed and for the individual (as the Deliveroo case has demonstrated)."
Andrew addresses how the UK's approach differs from European jurisdictions: "While different countries have different methods for determining employment status, most European countries will draw a distinction between employees and the genuinely self-employed.
"By way of example, Germany has different rules for dependent workers (similar to the English definition of employee) and independent workers (who are akin to the genuinely self-employed). The tests are similar to the UK law and dependent worker status is based on similar factors including whether the individual has a right of substitution and the level of control exercised by the “employer”."
"Most European jurisdictions give workers more rights than the UK does. English employment rights have often been seen as a halfway between the employer-friendly law of the USA and the more employee-friendly rights of the European mainland.
"In the Netherlands most employees are entitled to receive 70% of their salary during their first two years of illness. In the UK, statutory sick pay is capped at £109.40 per week and it only lasts for 28 weeks.
"In another example, in the UK, most employees do not get basic protections from unfair dismissal until they have two years’ service (with some exceptions). In France, most employees have protections from day one (albeit with some allowances for a probationary period)."
Andrew's comments were published in the International Bar Association's 'Global Insight' magazine, 16 January 2024, and can be found here.