REWARD
Self-employment, stress and surgeons
Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different recent employment law cases
IWGB v Central Arbitration Committee The Supreme Court (SC) had to consider in this case, IWGB v Central Arbitration Committee, whether certain Deliveroo drivers were classed as being workers or self-employed. The Independent Workers’ Union of Great Britain (IWGB) made a formal request for trade union recognition to Deliveroo as it sought to negotiate pay, hours and holiday rights with Deliveroo on behalf of the riders. Deliveroo rejected the request as the riders engaged by them were self-employed and not workers, and trade union recognition isn’t available to the genuinely self-employed. The IWGB then applied to the Central Arbitration Committee (CAC) for statutory recognition. The CAC had to firstly decide whether the riders were workers as defined by the statute. As part of the contractual arrangement, riders were under no obligation to log on to the Deliveroo app, they could allocate themselves as ‘unavailable’ at any stage and could reject or ignore any jobs without penalty. There were also substitution clauses where the rider could, without obtaining any prior approval, arrange for another courier to perform their work before, or after, accepting specific jobs. There was no policing of the substitution right by Deliveroo and the rider themselves would be held responsible for ensuring the substitute was sufficiently skilled to carry out the job. It was the individual’s own
responsibility to pay the substitute and either lend their device to their substitute or to share their login details to allow the substitute to use the Deliveroo app on a different device.
is that an obligation of personal service was an indispensable feature of the relationship of employer and worker. It was then appealed to the SC. Applying the usual tests to determine status, the court rejected the argument put forward by the IWGB and held that the riders couldn’t be workers. This was because they: l didn’t have specific hours of work l could work elsewhere, including for rivals l could appoint a substitute to carry out their work for them. This, the court said, was ‘fundamentally inconsistent with any notion of an employment relationship’. Nevertheless, the court pointed out that there was nothing in law to stop the riders joining together and forming a union or joining an existing one. However, their employment status prevents them from forcing Deliveroo into collective bargaining under UK law as that requires a certain number of employees in a bargaining unit before the process of statutory recognition can be started. Phillips v Aneurin Bevan University Local Health Board The employment tribunal (ET), in the case of Phillips v Aneurin Bevan University Local Health Board, had to consider whether stress could be a disability even where there hasn’t been a formal health diagnosis. The claimant brought claims for:
“Trade union recognition isn’t available to the genuinely self- employed”
Although the CAC recognised substitution in practice was rare, because riders who didn’t want to carry out jobs could simply not log on or make themselves available, it found Deliveroo riders actually carried this out in reality. There was evidence that a rider substituted themselves for their own financial gain and others did it after accepting jobs because they later decided they didn’t want to perform them. As the substitution right was genuine, unfettered and being operated in practice, the riders weren’t undertaking to do work personally. Therefore, they weren’t classed as workers and the claim for recognition wasn’t accepted. The IWGB sought to challenge this decision via the judicial review process and took the case before the Court of Appeal who upheld the decision made by the CAC. It found that the position under English law, subject to certain limitations,
| Professional in Payroll, Pensions and Reward | March 2024 | Issue 98 46
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