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Strike Action, but not as we know it

Published: 11 March 2024
Time to read: 4 mins

In February, takeaway drivers at a variety of “gig economy” delivery platforms took part in “strike” action to demand better pay and working conditions.  For end users of these delivery apps, the service disruptions experienced will no doubt have made this look and feel like a traditional strike.  However, from an employment law perspective, it was somewhat out of the ordinary.

What is industrial action?

Industrial action typically involves the refusal by a group of employees or workers to do something as a bargaining tool.  It can include a total cessation of work in the form of strike action; or something short of a strike – such as an overtime ban or work to rule.  It has been described in case law as:

“a worker, in conjunction with all or some of his fellow workers, declining to work or declining to work efficiently in each case with the object of harming the employer so that the employer will feel obliged to increase wages or improve conditions of work or meet the other requirements put forward by the workers’ representatives.”

What made this strike unusual?

The fact that the majority of those striking were not employees or workers.  Just Eat drivers and Deliveroo riders operate on a self-employed basis, whilst Uber Eats allows its couriers to work “where and when they choose”.

This was not a situation where employees collectively refused to attend work – in breach of their employment contracts – when they would otherwise have been required to do so.  Rather, it involved those who have an express right to work, where and when they want, co-ordinating their legitimate absence from work so as to cause maximum disruption in a bid to secure better pay and conditions.

Was there trade union involvement?

Not in the traditional sense.  There has been much debate about whether gig economy couriers have the right to form and join a trade union.  Deliveroo riders have taken this point all the way to the Supreme Court, but were unsuccessful on the basis that (i) they are not employees of Deliveroo; and therefore (ii) Article 11 of the European Convention on Human Rights (Freedom of Assembly and Association) was not engaged.

Deliveroo does have a voluntary agreement with GMB – one of the UK’s largest unions – and the co-ordinated action by gig-economy couriers was facilitated by Delivery Job UK, a group set up in support of delivery staff in the UK.  However, as these strikes did not fall within the traditional legal framework, the usual process of balloting union members in accordance with very prescriptive legal requirements did not take place.

Will there be repercussions for those who went on strike?

As the striking individuals were not employees, they do not benefit from unfair dismissal protection.  As such, the usual safeguards given to those participating in “protected” industrial action will not apply.

The various businesses involved could theoretically terminate their arrangements with those who went on strike if they wish; but given the reliance of gig economy platforms on having a large and flexible workforce to ensure widespread delivery coverage, this would be counterproductive in the long run.

What next?

Given the concerns raised by gig economy drivers, riders and couriers about the real term reductions in their earnings; further co-ordinated action across a variety of platforms is likely.  Their success will likely be highly dependent on the extent of both the inconvenience caused to end users and the revenues lost by the platforms as a result of the strikes.  If both are significant, then the platforms may have little choice other than to attempt to reach a middle ground with their respective workforces.

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