It has been confirmed that Deliveroo riders are not workers with European Convention on Human Rights (ECHR) Article 11 rights to form trade unions. Only those in an “employment relationship” benefit from the right to form trade unions for the protection of their interests.
The test for establishing whether an employment relationship exists is to be answered by reference to criteria identified in International Labour Organisation Recommendation 198, including whether the work must be carried out personally. In the case of Deliveroo riders, it was held that their right of substitution is genuine; they did not have to provide services personally to Deliveroo and were therefore not in an employment relationship with them.
This judgement could be regarded a set back for those seeking to prove that gig economy individuals are workers with rights, and not self-employed independent contractors. However, as this judgment makes clear, it should not be seen to be a deterrent to other individuals with gig economy jobs whose terms of engagement are different to those of Deliveroo. They may still be able to succeed, following in the footsteps of Uber and Addison Lee drivers, in establishing that the reality of their particular situation is different.
This reinforces the fact that even if a contract contains a right of substitution, the issue will be whether or not it is a genuine one. The question of how often in practice the individual does the work themselves as opposed to having it done by someone else will be pertinent in establishing whether the right is genuine.