In the recent case of Independent Workers Union of Great Britain v Central Arbitration Committee and another [2023] UKSC 43, the Supreme Court considered whether or not riders working for Deliveroo had the right to form and join a trade union under Article 11 of the European Convention on Human Rights (ECHR).
Background and Facts of the Deliveroo case
We are all familiar with Deliveroo riders on our streets delivering take-aways. A substantial number of these riders in London joined the Independent Workers Union of Great Britain, which is an independent trade union (“the Union”).
As members of the Union, it was the riders’ intention that the Union would negotiate with Deliveroo on their behalf in order to improve the conditions under which they perform their services. However, Deliveroo refused to enter into collective bargaining negotiations with the Union on a voluntary basis. As a consequence, the Union made an application to the Central Arbitration Committee (“CAC”) to be recognised, as the CAC is the quasi-judicial body which, under a statutory procedure set out at Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”), has power to order an employer to recognise a union and engage in collective bargaining provided the conditions set out in that Schedule are met.
One of those conditions is that the people in respect of whom the union wishes to be recognised are “workers” within the meaning of section 296 TULRCA, which means:
an individual who works, or normally works or seeks to work under either:
- A contract of employment.
- Any other contract whereby they undertake to do, or perform, personally any work or services for another party to the contract who is not a professional client of theirs.
Deliveroo contended that its riders did not fall within that definition and the CAC agreed and rejected the Union’s application for recognition.
The CAC also rejected the Union’s alternative argument that a refusal to recognise the Union for collective bargaining based on the definition of “worker” in the domestic legislation would constitute a breach of Article 11 of the ECHR which protects freedom of peaceful assembly and association.
The Union sought permission to challenge the CAC’s decision (in respect of the breach of Article 11) by way of judicial review.
Earlier decisions
The High Court rejected the Union’s Article 11 argument on the basis that the ECHR case law on which the Union relied did not extend Article 11 rights outside an employment relationship, and the riders were not in an employment relationship with Deliveroo.
The Union appealed to the Court of Appeal, who upheld the High Court’s judgment.
Supreme Court Judgment
The Supreme Court unanimously dismissed the appeal and held that the riders were not in an employment relationship for the purposes of Article 11 ECHR, and the provisions of that Article which protect trade union activity do not apply to them.
The Judgment set out the following reasons for reaching this decision:
- It is clear from the ECHR case law that the right to form a trade union only arises in the context of an employment relationship. The concept of an employment relationship for the purposes of Article 11 is freestanding and does not depend on the definitions of workers or employees used in domestic law. Instead, it should have regard to the factors set out in the International Labour Organisation Employment Relationship Recommendation, 2006 No 198 (“the ILO Recommendation”).
- The ILO recommendation makes the point that the assessment of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contract or other agreement between the parties. The correct approach requires the Court to consider many different factors, focussing on the practicalities of the relationship and how it operates in reality.
- The CAC had rigorously scrutinised the substance of the relationship between Deliveroo and the riders. Some findings of the CAC were particularly significant:
- The contract between the riders and Deliveroo gives riders a broad and virtually unfettered right to appoint a substitute to take on their jobs. This right, on its face, is totally inconsistent with there being an employment relationship. The CAC found that Deliveroo did not police a rider’s decision to use a substitute and riders would not be criticised or sanctioned for doing so.
- The CAC found that Deliveroo did not terminate riders’ contracts for failing to accept a certain percentage of orders or failing to make themselves sufficiently available. The riders were free to work or not as convenient to them.
- The CAC found that Deliveroo did not object to riders working simultaneously for Deliveroo’s competitors.
- In all the circumstances, the CAC was entitled to conclude that the provisions in the contract genuinely reflected the reality of the relationship and that that was not an employment relationship. As the riders do not have an employment relationship, they are not able to rely on the trade union rights conferred by article 11.
As there is some lack of clarity in the case law, the judgment also addressed the scope of the collective bargaining rights that Article 11 confers for those workers who do have an employment relationship.
It held that the European Court of Human Rights has not yet decided that Article 11 includes a right to compulsory collective bargaining. Therefore, while states can go further than the ECHR requires, as the UK has done by enacting Schedule A1 of TULRCA, it would not be a breach of Article 11 for a state to decline to legislate for compulsory collective bargaining.
Comment
This case has far-reaching implications, not only for other workers in the gig economy but also for organisations engaging contractors and consultants in a variety of industry sectors.
It should also be noted that although Deliveroo riders were held not to have the right to collective bargaining, this does not preclude Deliveroo or other organisations in a similar position from choosing to engage in collective bargaining. In fact, we understand that Deliveroo has chosen to recognise a different union, GMB, and to engage in collective bargaining.