A ruling by the UK’s supreme court that Deliveroo riders cannot form unions or be recognised as employees could potentially have implications in the Irish courts in future gig economy cases, a leading employment lawyer has said.
The Independent Workers’ Union of Great Britain, which has the largest membership of app-based couriers in the UK, had fought the case in court for years, seeking to win formal collective bargaining rights for tens of thousands of Deliveroo riders.
However, the UK supreme court ruled that since riders are able to choose another person to cover their deliveries without Deliveroo’s involvement, the contracts between riders and the company do not constitute an “employment relationship”.
The case drew parallels with a ruling in the Irish Supreme Court last month which found delivery drivers for Domino’s Pizza should be treated as employees and not contractors. The drivers argued they were employees for tax purposes and Domino’s said they were independent contractors under “contracts for service”.
Jeffrey Greene, a partner in William Fry’s employment and benefits department, said that in spite of the similarities between the two cases, there are “notable differences” from a legal standpoint.
“The Domino’s case concerned a Revenue challenge as to whether the drivers be taxed as employees or not, whereas the Deliveroo case was a trade union seeking to officially represent Deliveroo riders in collective bargaining,” he said.
Substitution
Mr Greene also said there were differences in the weight given by the two courts to different factors. One of these was the right of “substitution”, meaning the right of the driver to appoint someone else to do their work.
“The UK supreme court attached a very high weight to this question of substitution alone,” he said.
“A further distinguishing factor between the two cases is that Deliveroo riders had a very high degree of discretion over who they substituted in for their work, not even limiting it to other Deliveroo riders and not preventing the rider from profiting from that substitution.
“By contrast, in the Dominos case, the right of substitution was very limited and as seen as more akin to swapping shifts between co-workers.”
Mr Greene pointed out that UK decisions “are often quoted in arguments before Irish courts so you can expect today’s ruling and its arguments to potentially be referred to in later Irish gig economy cases by one side or another”.
Michael Doyle, employment partner at A&L Goodbody, agreed the Irish and UK supreme courts “appear aligned” on the issue of substitution being a key factor in determining employment status.
“Both accept that, as personal service goes to the very heart of the employment relationship, where there is an unconditional right to delegate the performance of this service to another person, that is inconsistent with the existence of an employment relationship,” he said.
Triona Sugrue, a knowledge consultant at A&L Goodbody, said an “obvious difference” between the two cases is that the UK case concerned adherence to the European Convention on Human Rights whereas the Irish case concerned tax law.
“As pointed out by the Irish Supreme Court in the Domino’s case, the particular legislative regime under consideration is a key factor in the overall analysis of whether or not an individual is properly considered an employee,” she said.
Ronnie Neville, a partner in Mason Hayes and Curran’s employment law and benefits team, said the Irish Supreme Court looked closely at and took guidance from various UK decisions on the “vexing question of employment status” when reaching its decision.
However, he said that while there are some common themes or features examined by both courts, the cases are “in fact very different”.
Mr Neville said Deliveroo riders in the UK were seeking recognition of riders as “workers” which is an intermediate employment status for many people whose working relationship has some features of an independent contractor and some features of an employee.
“This worker status in the UK confers some limited employment protections on the worker, including collective bargaining,” he said. “In Ireland, you are either an employee with full employment law protections or a contractor with no employment law protections, other than equality law.
“The court and tribunals both in Ireland and in the UK have strongly and repeatedly emphasised that they will not be bound by the description of the status of a worker set out in the relevant contract between the parties.
“That said, the contract is this starting point in any analysis of the relationship between the parties. Next, you look at the facts on the ground, how the de facto relationship actually operates.
“The Irish Supreme Court looked closely at the contract, and the nature of the relationship, between the company and the drivers before concluding, after detailed analysis, that the drivers were employees for tax purposes.”
Mr Neville said that those who regularly use contractors in their business in Ireland should review and consider the Irish Supreme Court decision from a risk evaluation and risk mitigation perspective.
