At the end of last year, the Supreme Court released its much anticipated judgment in the case of Independent Workers Union of Great Britain v Central Arbitration Committee and anor. The Court decided that Deliveroo food delivery “riders” were not in an “employment relationship” for the purposes of Article 11 of the European Convention on Human Rights because they do not work specified hours, are able to work for rival companies and can appoint someone to work in their place.
The Independent Workers Union of Great Britain (IWGB) had been litigating since 2017 to require Deliveroo to recognise the IWGB and to engage in collective bargaining with it in relation to pay and conditions. Earlier decisions had found that Deliveroo riders were not “workers” within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 because they were not required to provide personal service and were permitted to use substitute riders.
IWGB appealed to the Supreme Court, arguing that it was an unlawful interference with the riders’ human rights to deny IWGB’s application for compulsory recognition for collective bargaining. IWGB argued that the definition of “worker” in the 1992 Act should be construed widely enough to give effect to Article 11 of the European Convention on Human Rights which protects the right to freedom of association, including the right to establish and join a trade union. In order to succeed, the IWGB had to persuade the Supreme Court that Deliveroo and its riders were in an “employment relationship”, even if they were not workers.
That argument failed. The Supreme Court rejected the appeal and found that the Deliveroo riders were not in an employment relationship for the purposes of Article 11 on the basis that the “riders are…free to reject offers of work, to make themselves unavailable and to undertake work for competitors…these features are fundamentally inconsistent with any notion of an employment relationship“. The IWGB has now exhausted its domestic litigation with the finding that Deliveroo riders are not workers and cannot rely on Article 11 to insist on union recognition. They are self-employed contractors.
On a positive note, the Supreme Court confirmed that its decision does not stop Deliveroo, or other companies in a similar position, from recognising a trade union or entering into collective bargaining arrangements voluntarily. It is the compulsory collective bargaining provisions that were affected by its decision. Back in 2022, Deliveroo and the GMB announced that they had entered into an historic and groundbreaking agreement covering more than 90,000 riders working for Deliveroo. This voluntary partnership agreement recognised that Deliveroo riders are self-employed contractors, but gave the GMB rights to bargain collectively on pay and to be consulted on benefits and other issues, including riders’ safety. This innovative approach shows that, even if a workforce is predominantly self-employed, there is no reason why they cannot seek to agree recognition and collective bargaining arrangements.
Please contact a member of our Employment team for advice on the employment status of workers within your organisation or for guidance on collective bargaining.
