In Independent Workers Union of Great Britain v. Central Arbitration Committee and another, the Court of Appeal unanimously held that trade union freedom under Article 11 of the European Convention on Human Rights does not extend to Deliveroo riders as they are neither employees nor workers engaged by Deliveroo.
Under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), a trade union can apply to the Central Arbitration Committee (CAC) for compulsory recognition on behalf of a group of workers. Recognition provides a union with the right to conduct collective bargaining with the employer on benefits such as pay, working hours and holiday.
A worker is an individual who works, normally works, or seeks to work either:
- a contract of employment; or
- any other contract whereby they undertake to carry out or perform personally any work or services for another party to the contract who is not a professional client or customer of theirs.
The Independent Workers Union of Great Britain (IWGB) applied to the CAC under the statutory recognition procedure for an order compelling Deliveroo to recognise them for the purposes of collective bargaining. Deliveroo argued that the procedure was not available to the IWGB as their riders were not workers.
A key element of “worker” status is the requirement to perform the work personally. However, Deliveroo riders work under agreements which describe them as “independent contractors” and state that there is no obligation on the riders to accept any jobs offered. Indeed the agreements provide that riders can engage another individual to perform the delivery (without prior approval from Deliveroo) or even abandon the job part way. This right of substitution was not just on paper but was exercised in practice. The CAC therefore declined to accept the IWGB’s application on the basis that the riders were not workers.
High Court decision
The IWGB appealed the CAC’s decision arguing that the CAC had not dealt properly with the IWGB’s submission regarding Article 11 of the ECHR. This argument was that the definition of a worker under the statutory recognition procedure should be interpreted in a way that does not exclude Deliveroo riders from exercising Article 11 rights. The element fatal to IWGB’s case was that there was a genuine right of substitution both on paper and in practice, and so the High Court rejected this argument. IWGB appealed again.
Court of Appeal decision
The Court of Appeal (CA) unanimously rejected IWGB’s argument and refused permission to appeal to the Supreme Court. The CA found that Deliveroo riders were not in an employment relationship with Deliveroo for the purposes of Article 11. The riders had a “virtually unlimited” right of substitution and were under no obligation to provide services personally. The CA agreed with the CAC in that the obligation to carry out work personally is an indispensable feature of a worker-employer relationship and, in the absence of such obligation, the Deliveroo riders were independent contractors.
The right to form a trade union under Article 11 does not extend to those outside an employment relationship. The CA noted that there were no examples of groups of non-workers being entitled to form a trade union. It rejected IWGB’s argument that Article 11 applies to everyone so that it could not be restricted to, for example, those in an employment relationship. The CA considered that, if IWGB’s argument were correct, an association of shoppers at a supermarket chain could form a trade union to negotiate better prices.
On top of this, even if it had reached a different conclusion regarding trade union rights under Article 11, the CA said it would not necessarily follow that the Deliveroo riders were entitled to seek compulsory union recognition. Countries have a wide margin of appreciation in determining which workers should be entitled to compel trade union recognition for collective bargaining. It was therefore open to Parliament to bar self-employed individuals, who have no obligation to carry out any work for a particular company, from seeking compulsory trade union recognition from that company.
This decision turned on the Deliveroo riders’ status as workers. As seen in recent decisions on gig economy workers, whether someone is a worker or an independent contractor will depend heavily on the realities of their working arrangements. Of the factors, whether or not there is any obligation to carry out work personally is one of the decisive elements and a genuine, unfettered ability to engage another individual to provide the services will point towards self-employment. The precise details of the working arrangements have huge implications, as different rights attach to different employment status. Whilst workers in a ride-sharing platform and at Pimlico Plumbers were entitled to receive holiday pay, minimum wage protection and more, the Deliveroo riders could not benefit from Article 11. This case is a useful reminder to assess your working arrangements carefully to ensure you identify their correct legal status and the rights to which they are entitled.