In recent news story’s concerning the food delivery company Deliveroo we have become increasingly disgusted at the way this tech company and others, that create alternative ways to hail cabs or order food, treat the people on the ground that make their operation work.
These companies create apps to interact with their customers so initially their overheads are small. They then employ operatives such as drivers or couriers to provide the service they offer. The driver or courier signs a contract that states they are a self employed contractor. That means the tech company who creates the app can avoid taking responsibility for staff and the employment rights that go with being an employee.
There are other industries that this type of contract is used and they are on the increase, market research is just one of those areas, but in this article I will concentrate on Deliveroo.
Deliveroo came to our attention at the beginning of the year when 4 cycle couriers lodged an employment tribunal claim against Deliveroo. They want to be recognised as employees and receive the minimum wage, this case is still pending. We back the riders as they have no employment protection and many are seriously injured when making deliveries for the company. There is no compensation scheme or insurance that these riders can take out, so an injury can lead to destitution.
The cycle couriers claim that for them to earn the equivalent of the minimum wage, they are forced to work nonstop for 10hrs a day. This in turn means that as a self employed contractor you cannot look for other work or contracts while working for Deliveroo. This situation means that the majority of the rider’s time is spent working for Deliveroo, surely that makes them an employee.
The point that made me really angry came a few months ago; I saw an article stating that Deliveroo has added a clause in their courier contracts. The clause states that:
“You…warrant that neither you nor anyone acting on your behalf will present any claim in the employment tribunal or any civil court in which it is contended that you are either an employee or a worker”
The agreement goes on to state that the Courier will indemnify Deliveroo for any costs and expenses that it incurs in defending such proceedings.
Can this be right? The long answer is that the courts and tribunals can look past the written agreement. It is important to look at all the circumstances surrounding the relationship between the individual and the business, outside of what the agreement between them says, in order to determine the individual’s employment status.
Deliveroo engages Couriers to pick up and deliver fast food to members of the public. Under the agreement between Deliveroo and the Couriers the Couriers are expressly stated as being “self-employed contractors”. Self-employed contractors by definition are not employees and so do not benefit from the added protections afforded to employees such as the National Minimum Wage and Holiday Pay.
However, the determination of employment status does not begin and end with the agreement. The Courts and HMRC take a number of factors into account when determining whether an individual is more likely to be an employee than a self-employed contractor. Firstly they will seek to identify if the 3 irreducible minimum features of a contract exist namely:
Mutuality of obligation – an expectation by the employer that the employee will accept work when offered and an expectation by the employee that work will be offered;
The obligation to perform work personally; and
If any of the above features are missing, there will be no employment contract. If they all exist, there maybe an employment contract and the Courts/HMRC will go onto consider other factors. Examples of some of these are:
Whether the individual is paid through PAYE or after submission of an invoice
Whether the individual is required to wear the business’ uniform
Whether the individual is entitled to carry out work for other businesses at the same time they are engaged by this business
The degree of financial risk
The degree to which the individual is integrated into the organisation
Whether the individual is obliged to follow the business’ policies and procedures
There aren’t a particular number of these which mean that the individual is definitely an employee but the more that can be answered in the positive the more likely this will be the case regardless of what is in the agreement.
So what has Deliveroo done to make me feel sick?
This morning Deliveroo couriers staged a protest in central London. Last night, a large group of Deliveroo drivers gathered in West Hampstead in a strike over pay.
In May, Deliveroo announced a new contract as a ‘trial’ which according to some drivers could mean they are paid less than the minimum wage for people over the age of 25. The pay used to be £7 per hour plus £1 commission per delivery.
The new pay scheme, which will pay £3.75 per delivery, begins on Monday. Deliveroo argue that the scheme gives drivers more flexibility to work as and when they want.
Witnesses reported a convoy of ‘about 50’ Deliveroo drivers ‘tooting down West Hampstead high street’ this morning.
In a tell-all piece for The Guardian in June, one Deliveroo driver said that because there is no cash handover – payment on the website or app is by card – tips for workers at the company are rare.
‘A lot of my colleagues travel in from other parts of London so they can’t go home between the two shifts – they are essentially sacrificing 10 hours a day but only being paid for six,’ one worker said.
I believe this model of employment is basically unfair, although this kind of arrangement might be good for many; there are many more who would like security and protection. If you agree with us on this one then don’t stay silent please,