Employment Rights Bill

Lord Russell of Liverpool Excerpts

Committee stage
Tuesday 24th June 2025 Lords Chamber

So this falls between, “Can we get fewer people going across the channel?” and “Can we make the roads, pavements and everything safer, and make sure that those who obey the law benefit from it and those who do not get taken to the cleaners?” I beg to move.

[Lord Russell of Liverpool (CB)]

As a loyal member of the All-Party Parliamentary Group for Cycling & Walking—with an emphasis on the cycling rather than the walking—I support the noble Lord, Lord Berkeley, on this, and I will explain why. As he indicated, what is behind this amendment is partly what is leading certain noble Lords around the Chamber to pepper the noble Lord, Lord Hendy, with a series of curveballs about e-bikes in all sorts of shapes and illegal forms.

The All-Party Parliamentary Group for Cycling & Walking has just issued a rather alarming report called Unregulated and Unsafe: The Threat of Illegal E-Bikes. It has a specific chapter in it called:

“The role of delivery platforms and the gig economy”.


This evening, we are talking about two intertwined issues. First, there is an employment law issue. At the heart of the Bill is a wish by our new Government to rebalance what they view as an imbalance that has occurred during successive Conservative Administrations between the rights of workers, particularly unionised workers, and the rights and freedoms of employers. Whatever your view on that, what we are talking about today is a good example of an area of employment that is using slightly questionable tactics to avoid recognising its rights and responsibilities towards its workforce.

Your Lordships may recall that, a few years ago, when the phenomenon of Uber started taking over and assailing the black cab business here in London, there was a long debate and a big issue around Uber claiming again and again that the people who were driving for it were not its employees. In successive cases, it was taken to court and eventually it had to admit that the people who drive for it are actually employees and have some rights as employees.

We have a very similar situation with delivery platforms. These are the delivery platforms where, if you have a craving for a peanut butter and pineapple pizza at 3 o’clock in the morning—which, being married to an Italian, I certainly hope you do not—you can simply reach for your smartphone and it will be delivered to your door fairly quickly.

Those large platforms are basically doing what Uber did originally. They do not recognise the people who are driving for them as employees; they are said to be contractors—indeed, they allow the contractors to nominate people to substitute for them, people who have no commercial or contractual relationship with the company whatever. One of the larger delivery platforms, related to Deliveroo, successfully managed to win a case in the Supreme Court brought by the Independent Workers Union of Great Britain, which was aware that this particular arm delivered food around London and other cities, largely using unregulated and very fast e-bikes. The company successfully argued against the union that these were not employees, and it used the fact that the people who ride for it could substitute others as part of its defence, which was accepted by the High Court. So we clearly have a strange loophole here that is harmful for those workers and is driving all sorts of unfortunate behaviour.

In evidence, I turn back to the report of the all-party group and the issue about the role of delivery platforms and the gig economy. In its written evidence, London Councils said:

“Many delivery companies are set up as Platform companies, with riders classed as self-employed so companies are therefore not required to provide health and safety measures. Platform companies only take an advisory role in safety standards for riders, not mandating vehicle mode or collision reporting, therefore avoiding any financial implications. This means there are no checks and balances in place for the safety of the vehicles used for deliveries, the riders themselves and the impacts on other road users”.


In respect of evidence from one of the platforms—Just Eat, which noble Lords may have seen written on the back of mopeds with L-plates on or illegal e-bikes—the report said:

“Pay for riders per drop has declined in recent years, requiring ever longer shifts with ever more deliveries per hour in order for a rider to earn sufficient money”.


We see vehicles or e-bikes constantly jumping red lights, narrowly missing pedestrians and weaving in and out of traffic, but they are doing it because the way in which they are compensated requires them to make the maximum number of deliveries in the shortest possible time, which obviously encourages speeding and avoiding road traffic laws, red lights and things like that. I suspect that many noble Lords or members of their families have had experiences of looking around rather nervously even when they cross a zebra crossing because of what may suddenly assail them.

Lastly, this is written evidence—and it is a tribute to the noble Baroness, Lady Blake of Leeds, who is not in her place because this is not a Bill that she is involved in—from Leeds City Council, which has the same problems. It says:

“In addition to the safety of e-bikes, we would like to work with government to improve the industry’s employment and verification practices to address account sharing, where couriers can substitute deliveries to others who may not have a right to work in the UK. FDC [food delivery companies’] business models currently rely on riders themselves to confirm their eligibility to work, and this can enable illegal working. Alongside this, we would like to cover how to reduce the time pressure on riders to make deliveries, driving hours, and platforms’ responsibility for their riders’ safety”.


The councils have made a compelling case for this, as has the noble Lord, Lord Berkeley. I suggest that for the Government to look at this would align with much of their intent in this Bill.

[Lord Hendy (Lab)]

My Lords, I feel obliged to add a word to my noble friend Lord Berkeley’s amendment, because I was counsel for the union in the Deliveroo case which the noble Lord, Lord Russell, has mentioned. The issue in that case was slightly tangential to that raised by my noble friend; the question there was whether Deliveroo riders were among those entitled to the trade union rights and benefits of Article 11 of the European convention. We need not go into that.

The Supreme Court held that the presence of a right of substitution in the contracts between the Deliveroo riders and Deliveroo meant that they were not entitled to those trade union rights. That reflects the situation in English law under the definition of a worker in the Trade Union and Labour Relations (Consolidation) Act and the Employment Rights Act, which requires personal service. The courts have held that that excludes workers who have the right to engage a substitute, even in situations such as that with Deliveroo where the Central Arbitration Committee held that its use was rarely if ever put into operation. It was never used by those who brought the case.

The relevance of all this is that, as the noble Lord, Lord Russell, mentioned, the categorisation of workers—whether they are an employee, a limb (b) worker, which Uber drivers are and the Deliveroo riders wanted to be, or an independent contractor—determines what rights they are entitled to under the various statutes. I accept that my noble friend the Minister will say that the status of workers will be consulted on in future. I completely agree that it should be approached holistically. As someone who has put up two Private Members’ Bills on the status of workers, both of which succeeded in this House with all-party support, I am happy to offer him my drafts. The matter has to be dealt with holistically. However, my noble friend Lord Berkeley has a point. This use of substitution clauses is a device to deprive workers of the statutory rights that Parliament intended them to have. It is an abuse that could be addressed now in this Bill before we get to the consultation on the status of workers generally.

The noble Lord, Lord Russell, and my noble friend Lord Berkeley indicated some of the consequences of the abuse of these substitution clauses. I will articulate two more. First, as I have mentioned, where platform companies insert a substitution clause in the contract between the rider or the contractor and the platform company, the effect is to deprive them of all employment rights. When I say that the platform company inserts the clause, that is what happens—there is no agreement, consultation or collective bargaining; they are simply told, “If you want to work, you agree to the substitution clause”. It is a device. In the Deliveroo case, it was, in effect, accepted that that was the purpose of the insertion of the clause.

Noble Lords have already articulated the second problem. Since the Deliveroo case, substitution clauses have become extremely widespread and the use of actual substitutes, which was rare in the Deliveroo case, has now become very frequent and involves illegal working and so on. But—this is the final point I want to draw to your Lordships attention—think of the workers who are engaged as substitutes: they are being paid even less than the contracted riders; they are being exploited. They are the people who, as the noble Lord, Lord Russell, pointed out, speed through the traffic, risking their lives to make as many deliveries as possible. It is an abusive situation and this might be a moment to deal with it, in advance of the general consultation and the legislation that will be required to regulate the status of workers generally.