If there was ever any doubt that Trade Unions target their dates for industrial action to cause maximum inconvenience (think train drivers striking on the day of major sporting events, or binmen striking at Christmas), then Deliveroo and other food delivery company drivers striking on Valentines Day surely put that to bed. Scant consolation for couples forced to head to the kitchen and do it themselves instead of reaching for the take-away menu for their romantic diner a deux.

The strike itself related to a demand for better pay and working conditions, so is relatively unremarkable in a time where levels of industrial action are at their highest levels in recent memory. Where this one differs, however, is that the drivers are not employees or workers and that it was called by a grassroots organisation called Delivery Jobs UK, which is not included within the government’s list of certified trade unions. This is not therefore your traditional strike and so we strongly suspect it hasn’t involved the normal requirements for undertaking lawful industrial action: notifying an employer of an intention to ballot and providing it with certain prescribed information; conducting a formal ballot and serving the employer with at least 14 days’ notice of the intention to take industrial action.

The reason for this probable departure from the normal requirements for taking industrial action is likely found in the complex issues around the employment status of delivery drivers/riders and many other gig economy workers. In November 2023, Deliveroo successfully defended a claim from the Independent Workers Union of Great Britain to be recognised for collective bargaining purposes. The Supreme Court found that Deliveroo riders were not in an employment or worker relationship with Deliveroo and so it could not be compelled to engage in collective bargaining in respect of them. The impact of this decision is that many gig economy workers may be denied formal representation by a trade union (albeit Deliveroo has subsequently entered into a voluntary recognition arrangement in respect of them with the GMB, presumably to thwart any further overtures from the IWGB).

Without all those formalities the strike would normally be considered unlawful and action against both the strikers and the organisers might be considered; however, there is a problem. By the terms on which these delivery drivers/workers are engaged, they are likely to be fully entitled to declare themselves as not working on Valentines Day if they don’t wish to. There is generally no ability for the ‘employer’ to compel them to work certain days/times and they are free to withdraw their labour whenever they want and for whatever reason they choose. This is the downside of the same arguments used by Deliveroo to show that its drivers are neither employees nor workers, but genuinely self-employed. In other words, they can dictate their own working hours and days to a level incompatible with the normal exercise of employment-type direction or control. That all works fine when the commercial interests of gig staff and employers are aligned, but it falls to Earth with quite a bump when that ceases to be the case. It is easy to say that your associates can come and go as they please, but quite a different thing when they actually do. 

Of course, the further consequence of the drivers not being employees or workers is that even if they did go through all the prior steps required to make strike action lawful, they would not have the normal protections against detriment or dismissal for strikers. An employer let down by its suppliers, which is essentially what happened here, would be fully entitled to stop using them. That is particularly the case as gig worker contracts commonly provide that the “employer” is under no obligation to offer work in the first place. At a micro or individual level that probably happens all the time, but what is new here is the element of organisation and collective action by gig workers. The drivers won’t be paid when they don’t work, so those businesses have little to fear when gig staff withdraw their labour in ones and twos. However, if they all do so at the same time, then the balance of disadvantage swings round very sharply – while the individual courier loses a few hours’ fees, the engaging company may suffer a massive hit to its revenues and reputation, especially if the service disruption lands at so emotionally fraught a time as Valentines Day. The absence of a certified trade union calling the strike action itself also means that Deliveroo doesn’t have any meaningful recourse against the organiser even if it could establish that the strike involved some breach of individual contracts which Delivery Jobs had induced (which they can’t) – there is little to be gained by pursuing action against a grassroots organisation which has only a few hundred followers on X and a basic website which links you to various WhatsApp groups should you wish to become involved in its activities.