Self-employed drivers working for restaurant delivery firm Deliveroo have been told by their employer that they can’t take court action to be recognised as ‘workers’ in their contracts.
The issue centres on the question as to whether self-employed staff working for the firm can be recognised as staff members. The distinction between workers and self-employed is a definition that can make a big impact on a person’s rights; if these drivers are deemed to be ‘workers’ then they will be given some of the rights given to traditional “employees”, which means that they will be entitled to additional benefits such as holiday pay and protection from unlawful deductions.
This is similar to a recent story about Uber drivers who are already in court fighting a similar claim.
It now appears that Deliveroo drivers have clauses in their contracts of employment stating that they cannot take legal action; it also goes on to say that if they do take legal action then those staff may have to pay the companies legal fees. It should be noted we have not actually seen a copy of the Deliveroo contract but it has been quoted in the press in a number of articles, and our advice below is based on the publicised clause wording.
The big question is, are these employment clauses fair and enforceable?
Our Head of Employment (Ian Abel) comments <em>“You don’t have to be an employment solicitor to see that these types of clauses (effectively denying individuals access to the courts or employment tribunal) are fundamentally unfair.”</em>
<em>“We also don’t believe that these and similar types of clauses in self-employed contracts are enforceable as it is highly likely that they would be described by the Courts as a ‘penalty clause’ which are unenforceable.”</em>
There are general employment laws that come with built-in restrictions which stop employers stating that certain employment rights don’t apply and also go further to stop there being penalty clauses in any contract.
Ian continued,<em> “So we believe that any court that looks at these contracts would deem them to be unfair.”</em>
Deliveroo claim that these contacts allow their drivers to work flexibly and as freelance workers, and that their own legal representatives feel that they are fair.
There is definitely an upward trend in these type of clauses appearing in agreements offered by companies to potential self-employed staff. It would be our view that Deliveroo is effectively using this as a tactic to strong arm anyone against taking action against them, and they may well have been advised that this type of clause is actually unenforceable in practice. However they are using it simply as a deterrent in the hope it works!
