The big news this week comes from the UK Supreme Court. Britain's top judges unanimously agreed that Deliveroo riders do not have statutory collective bargaining rights because they aren't actually workers for the company. The verdict brings to an end the IWGB union's claim, which was first brought forward all the way back in 2016, although the union say they are considering their options over taking their case to an international court. You can read GEP's full report about the verdict here, and the full judgement here. Let us focus in this newsletter on the supposed smoking gun of self-employment: the substitution clause. According to the Supreme Court judges, the right of Deliveroo riders to get someone else to do the work on their behalf is the most clear evidence there is that this isn't an employment relationship. Thus, the substitution clause is now placed on a pedestal, the key for food delivery platforms to legally unlock the wonders of their riders earning as little as £2 an hour, having no protection from dismissal, no sick pay and so on.As Labour Law professor Alan Bogg has pointed out in the FT, the verdict seems to fly in the face of a "purposive" approach to determining employment status, where you focus on the actual reality on the ground rather than the legalese. The reality is that "riders are probably at the most precarious end of the labour market," Bogg says. “It’s a depressing judgment," he concludes. "It elevates formal legal arguments over the substantive need that people have for these protections.” Moreover, as labour professor and former Deliveroo rider Callum Cant points out in The Guardian, "the courts accept that the substitution clause is rarely used, and may well have been introduced specifically to prevent the reclassification of riders as workers."The substitution clause first appeared in Deliveroo's terms & conditions in May 2017, months after the case was first brought forward by the IWGB. The Central Arbitration Committee, the legal body which first heard the case, said in its judgement that they knew Deliveroo may have introduced the clause "in order to defeat this claim and in order to prevent the riders from being classified as ‘workers’" but nonetheless it was "permissible". What's really ironic about the Supreme Court placing such emphasis on a "broad and virtually unfettered right to appoint a substitute" to justify the supposed legality of Deliveroo's model is that in reality the substitution clause is a key means by which Deliveroo app accounts are rented to undocumented migrants and children, because the platform conducts no background checks on substitutes. In other words, the Supreme Court has unwittingly protected a digital black market.Only last week in this newsletter we looked at a BBC investigation which found that the substitution clause was a key mechanism for child labour in the UK food delivery sector. In response, UK Home Office Minister Robert Jenrick said the substitution clause was “perpetuating and enabling illegal working in our country”, and called on the company to reform it so that background checks are carried out on substitutes as well. Consequently, food delivery platforms in the UK will now be working out how to strengthen automated ID checks just enough to satisfy the Home Office, but not quite enough so that the courts believe the substitution clause is no longer "broad and virtually unfettered". It's farcical, but if we escape the corporate-legal pantomime for a moment and get back into the real world, what's clear is absolutely nothing the government or the courts are doing will do anything to address the problem of doubly-exploited undocumented migrants and children, nor improve the working conditions of riders who work within the law. For gig workers in the UK, this verdict is a blow to what little hope remained that the next Labour Government will address the question of employment status in the sector now. While Uber drivers are considered workers by the UK Supreme Court, they have not been able to access pay from log-in to log-out, as the Supreme Court had demanded, and their pay and conditions have in practise continued to worsen. Labour has already rowed back on previous commitments to a single worker status to strengthen gig workers' rights. A revealing interview in The Independent this week with veteran London rider and IWGB member Shaf Hussain and journalist Barney Davis, who shadowed Hussain for a day, shows just what Britain's political and legal system is defending."After the gruelling noon to 9pm shift, he goes home with not much more than £50. I couldn’t believe it," Davis writes. "We had delivered £60 steaks to city traders, Zizzis to the stage door of Mamma Mia, and pricey sushi to rich overseas students in plush skyscrapers."He worked non-stop, accepting jobs on top of jobs all over central and west London, switching expertly between swearing loudly about the state of capitalism to a beaming smile on his face for the customers."Such gruesome inequality isn't going to be changed by Britain's political and legal class. It will have to be the workers who do it.Ben Wray, Gig Economy Project co-ordinator
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Gig Economy news round-up |
- SPANISH PRESIDENCY SEEKS 'LANDING ZONE' ON PLATFORM WORK DIRECTIVE: Talks to find a compromise on the all-important question of the presumption of employment in the Platform Work Directive heated up this week ahead of the next formal 'trilogue' negotiations on 28 November. AgenceEurope reported that the Spanish Presidency of the Council of the EU issued a note scoping "a possible landing zone" on the employment status issue at a meeting with member-states on Friday [24 November], but there has been no update since then. The Presidency wants member-states, many of which are stubbornly refusing to accept any concessions to the Parliament's side, to look at compromising in three areas: the mechanism for triggering the presumption, reclassification in the absence of a rebuttal or in case of an unsuccessful rebuttal, and the criteria for reclassification. The Presidency note states that the Council's proposal for 3 out of 7 criteria required to trigger the legal presumption is "an excessive evidential burden on the person performing platform work", and wants member-states to consider the word "indicator" instead of criteria, as proposed by the Parliament rapporteur Elisabetta Gualmini. The Presidency also believe the Directive should be clear that it is "always necessary to refer to national law with regard to reclassification". The frustration of the European Parliament side of the negotiation was evident this week in a 'Wired' article, where Kim Van Sparrentak, Green MEP and deputy rapporteur on the Directive who participates in the trilogues, said: “Sometimes it feels like you’re negotiating with tech companies rather than member states.”
- GLOVO AND DELIVERY HERO OFFICES SEARCHED IN EU ANTI-TRUST INVESTIGATION: The headquarters' of Glovo and Delivery Hero were searched on Tuesday [21 November] by the European Commission (EC), alongside German and Spanish national authorities. The search, which took place without prior notice, is part of an investigation into potential cartel practises by the EC which was officially announced in the summer of 2022. Brussels' suspects that Glovo, Spain's largest food delivery platform which also operates in many other countries, and Delivery Hero, the German multi-national which purchased Glovo on New Year's Eve 2021, "may have infringed the antitrust rules of the European Union that prohibit cartels and restrictive business practices", as stipulated in Article 101 of the EU Treaty. Commenting on the search, the EC said "Commission officials were accompanied by their counterparts from the national competition authorities", but that the fact the search is being conducted does not mean they have necessarily concluded that a breach of competition laws has occurred. Glovo is also facing mountain fines for its refusal to employ its riders in Spain after the introduction of the Rider Law in 2021. Delivery Hero has set aside up to €400 million to pay Glovo's fines and back-dated social security contributions for false self-employment, for which the company now also faces the prospect of criminal prosecution from the Spanish Prosecutor's Office. Read more here.
- ITALIAN COURT FINDS GLOVO ALGORITHM IS DISCRIMINATORY: The criteria used by the algorithm of Foodinho (now known as Glovo) in Italy to assign tasks to riders is discriminatory, according to a Court of Palermo ruling on Monday [20 November]. The legal action was brought forward by the unions Nidil Cgil, Filcams Cgil and Filt Cgil. The platform’s algorithm is based on a so-called 'excellence score', a set of data points gathered on each rider which is partly used for work allocation. Judge Fabio Montalto found that the Excellence Score was biased towards riders who worked longer hours and at weekends, providing them with better "if not more" job opportunities. Consequently, this creates "indirect discrimination against workers who, due to their personal, family, age or handicap conditions, are at a disadvantage compared to their 'competitors'", and consequently is in breach of Italy's laws on access to work which are "based on the principle of equal treatment of people without distinction of handicap and age". Following the judgement, the Barcelona-founded platform, which is now owned by German multinational Delivery Hero, is obliged to remove from the algorithm the criteria that lead to such discrimination, in consultation with trade unions, and to pay €40,000 compensation to unions. In the same decision, the court did not judge as discriminatory the facial recognition system used by the platform. Read more here. (Written by Piero Valmassoi.)
- SPANISH YOUTUBER PURSUES FALSE-SELF EMPLOYMENT LAWSUIT IN PIONEERING CLAIM: Jota, a Youtube content creater with 120,000 subscribers, is suing Google Spain, owner of Youtube, for bogus self-employment. Jota has been producing videos on Youtube since 2018. If he were to win, the verdict would be an earthquake for content creation platforms like Youtube, potentially opening them up to millions of claims. "If I put on an apron every day, go to the same bakery and make bread, it's clear, I work for that business. Every day I put on the suit of creator for YouTube and worked for them," Jota, who's lawyer has represented Glovo riders in false self-employment claims, said. Google Spain responded that they "are deeply committed to the success of creators, which is why we share the majority of revenue with them...However, contrary to claims, they are not employees of YouTube in accordance with the nature of the relationship". The UGT union stated that it supports the claim of Jota and said they "hope that other workers in similar situations decide to sue the companies that own social networks; so that their rights as content creators, as editors, are recognised. as moderators, in short, that all people who work in the digital world have the same rights recognised as the rest of the working class". The trial will take place on 26 June 2024. Read more here.
- DELIVEROO RIDER APPREHENDED DUBLIN KNIFE ATTACKER: Caio Benicio, a Brazilian Deliveroo rider, was hailed as a hero after he stopped his motorbike to apprehend a knife attack. Three children and a school care assistant were stabbed outside of a school, with two of those still seriously ill in hospital. Benicio, who has lived in Ireland for a year, got off his bike and ran towards the incident, using his helmet to hit the suspect "with all power I have and he fell down," he said. "And I hit him and then come other people and start to kick him." The attack on Thursday [23 November] was allegedly carried out by an Algerian migrant, and hundreds of people took part in anti-immigrant riot in the city centre that same evening. Thirty-four people have been arrested. The Taoiseach (Prime Minister) Leo Varadkar condemned the rioting and paid tribute to all those who "risked their lives to save lives" in the knife attack, pointing out that "those who intervened weren't just from Ireland - they were from other countries as well". He added: "They are real Irish heroes, whatever their nationality." Read more here.
- DUTCH SUPREME COURT: GOODS TRANSPORT AGREEMENT & PENSION FUND APPLY TO DELIVEROO RIDERS: On Friday, [24 November] the Supreme Court in the Netherlands upheld a ruling of the Court of Appeal that a sectoral collective agreement and industry pensions fund for goods transport applies to Deliveroo riders and applies retroactively, to when Deliveroo first set-up in the Netherlands in 2015. The finding means that Deliveroo, which ceased operations in the Netherlands in November last year, means that former Deliveroo riders who make a legal complaint will be able to claim back-dated hourly pay, a pension and other allowances. The Dutch Supreme Court had previously found that Deliveroo riders are employees, not self-employed. The Court of Appeal had found in December 2021 that because Deliveroo riders were "mainly" engaged in delivering meals, they fell under the obligations of the goods transport sector. Deliveroo had sought the ruling to be squashed by the Supreme Court on the basis that the collective agreement in the sector is non-binding and by offering an alternative interpretation of "transport of goods by road", which the British food delivery platform did not believe Deliveroo fell within the purview of. The Supreme Court dismissed the complaint. Read more here.
- ESTONIAN FOOD DELIVERY PLATFORM FUDY TO END DELIVERIES FROM DECEMBER: Fudy, an Estonian food delivery start-up which only launched last year, has announced that it will stop all food deliveries from 21 December. The company, which delivers for a number of famous restaurant chains, including KFC, said it lacked profitability and is moving into other lines of business. Fudy reported turnover of €725,000 and a €3.6 million loss last year. The Estonian food delivery sector is dominated by two big players, Bolt, a multi-mobility Estonian platform, and Wolt, a Finnish food delivery platform that was purchased by DoorDash at the start of last year. Reports suggest that while Wolt is profitable in Estonia, Bolt is not. Jaagup Jalakas, head of Bolt's catering sector, said: "We are still seeing a growth trend both in terms of orders and the number of active customers, and we are successfully moving towards profitability." Mauri Dorbek of Apollo Grupp, a restaurant chain which worked with Fudy, said that Fudy had been a "breath of fresh air" in the sector and worried that no major players would enter the market and challenge Bolt and Wolt. "I am not convinced that any major player wants to come here at all, because the markets are not big and the investments and all that that entails will be quite large, in order to start capturing market share here," he said. Bolt said it would welcome new competitors into the market. Read more here.
Have we missed something important? You can help keep us informed by sending information to GEP@BraveNewEurope.com. |
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Podcast: How to organise app workers
On Radio Labour, two union organisers working with the Solidarity Center in the US and around the world explain what they've learnt about organising platform workers.
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The European Work-Time Network will host a webinar on 'AI & the Algorithmic Management of Work: Implications for working time in Europe and the Global South' on 29 November, 1pm CET. Agnieszka Piasna, European Trade Union Institute senior researcher, and James Muldoon, Head of Digital Research at the Autonomy think tank, will be the speakers. Click here for full details and to register.
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The Gig Economy Project is a media network for gig workers and we welcome contributions from workers, writers, academics, activists - anyone who wants to stand up for workers' rights in the gig economy.
If you would like to write for the site, discuss arranging an interview with GEP, or simply have information about developments in the gig economy in Europe you think we should be aware of, get in touch.
Contact project co-ordinator Ben Wray at GEP@BraveNewEurope.com or send a direct message to the Twitter: @project_gig.
And if you like the Gig Economy Project weekly newsletter, why not get your friends and colleagues to subscribe? Here's the link.
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