Deliveroo, an online food courier, has come under criticism by employment law commentators due to its controversial contracts with delivery drivers. They seek to prevent their (self-employed) staff from being able to take court or tribunal action so as to be recognised as employees of the company.
The clause reportedly states that the driver promises not to bring any tribunal or court claims in which they contend that they are a worker.
Another clause adds that if such legal action is taken, the individual must pay Deliveroo’s legal costs of defending the claim.
Why is this a problem?
Deliveroo sees its couriers not as staff of the company but instead as independent contractors who are offering their services via Deliveroo’s IT platform. If this is what they are, they have fewer rights than employed staff and cannot bring tribunal claims or organise industrial action. Nor can they collectively negotiate better pay and conditions than the £7 an hour, and then £1 per delivery they receive.
In fact, they may actually be employees – until a case gets to a tribunal, it is often unclear what is the employment status of an individual who provides their services personally. Also, the exact definition of ‘employee’ can differ a little according to the exact claim being brought. Someone can be an employee for employment law purposes but not for tax purposes. Finally, even if they are not employees, they could be ‘workers’, who have some, but not all, employment rights (including working time protection).
It is clear that these clauses are not compatible with employment law, employment solicitors agree. A clause providing for reimbursement of legal expenses is of little or no legal effect, because penalty clauses are rarely enforceable and clauses barring access to an employment tribunal are never enforceable. Statutory employment rights can’t be waived outside an employment tribunal unless through a settlement agreement, on legal advice or through ACAS. A clause indemnifying an employer against the costs of defending a claim would likely be void for being contrary to public policy.
However that is no reason not to include such a clause in an employment contract as it will still discourage claims from employees, both those represented by employment solicitors and those acting alone.
By Stephanie Stevens