After 7 years, the Independent Workers Union of Great Britain (“the Union”) has lost the battle to provide greater protection for Deliveroo riders, as the Supreme Court has ruled that Deliveroo riders are not legally recognised “workers” within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).
Background
On 7 November 2016, the Union made a formal request to Deliveroo to recognise it for collective bargaining in respect of riders in the Camden and Kentish town area of North London (“the riders”). Following Deliveroo’s rejection of this request, the Union made an application to the Central Arbitration Committee (“CAC”), a quasi-judicial body which, under Schedule A1 TULRCA, has the power to order an employer to recognise a union and engage in collective bargaining if certain conditions are met.
The CAC rejected the Union’s application and agreed with Deliveroo that the riders did not fall within the definition of “workers” in TULRCA. The CAC further rejected the Union’s alternative contention that a refusal to recognise the Union for collective bargaining based on the narrow definition in TULRCA would constitute a breach of Article 11 of the European Convention of Human Rights (“ECHR”) because the riders were workers for the purposes of that article.
The Union challenged the CAC’s decision by way of judicial review. CAC was the respondent, although Deliveroo became the substantive respondent after it was included as an Interested Party. The Union was granted permission for judicial review on the Article 11 argument alone, with Simler J rejecting the other four grounds raised. The Union was not granted permission in relation to the aspect of the CAC decision that the riders did not fall within the domestic definition of worker in TULRCA.
The Union’s judicial review challenge was dismissed in December 2018 in the High Court. This judgment was upheld when the Union appealed to the Court of Appeal in 2021. The Union then appealed again to the Supreme Court, whose judgment was handed down on 23 November 2023. Read the judgement in full here.
Key issues under consideration
The issues that arose in the appeal were as follows:
- Do the riders fall within the scope of Article 11 ECHR such that rights to join and be represented by a trade union are conferred on them?
- If the riders do have rights under Article 11, must the UK legislate to require Deliveroo to engage in collective bargaining with the Union?
- If the riders have such a right to require Deliveroo to bargain with the Union, is their exclusion from Schedule A1 of TULRCA because of the restrictive definition of “worker” in that statute a violation of Article 11 or justified as being necessary in a democratic society?
- If there has been a violation of the riders’ rights under Article 11, can that definition be read down so as to include them?
1. Scope of Article 11
At the time of the CAC investigation, Deliveroo introduced new contracts for the riders. The updated contract was markedly different from its predecessor, and represented a relaxing of controls previously exercised by Deliveroo regarding uniform requirements, simultaneous employment by competitors and, crucially, its attitude to substitutes.
The new contract provides riders with the right to engage substitutes to carry out their deliveries, with no involvement of Deliveroo. The riders are fully responsible for the actions of any substitute they use. The CAC found this substitution right to be genuine, and this was fatal for the Union’s claim, as the riders could not be said to undertake to personally perform any work or services for the purposes of TULRCA.
Considering Strasbourg case law, the Supreme Court found that the category of persons who benefit from a right to form and join a trade union under Article 11 is a smaller sub-class of those described in the article’s opening. Trade union rights are only conferred on those who fall within the sub-class by virtue of “an employment relationship”. The concept of an employment relationship was considered with reference to a multifactorial test focusing on the practicalities of the relationship and how it operates in reality.
The Supreme Court noted that the lower courts were correct to focus on the contractual right to substitution in considering the relationship between Deliveroo and the riders. This right was virtually unfettered and applies both before and after a rider has agreed to make a delivery. The Supreme Court found that this was “totally inconsistent with the existence of an obligation to provide a personal service, which is essential to the existence of an employment relationship within Article 11” (paragraph 69). The court had further regard to other relevant indicators that the relationship was not that of an employer.
2. Collective bargaining
Although the Supreme Court’s conclusion in relation to issue (1) was sufficient to dispose of the appeal in Deliveroo’s favour, it went on to consider issue (2) to clarify the law in this area.
Schedule A1 of TULRCA amounts to compulsory collective bargaining where specific conditions are met, however following an analysis of Strasbourg case law the Supreme Court did not consider that Article 11 includes the right to compulsory collective bargaining on the basis of current Strasbourg jurisprudence.
The Supreme Court highlighted that while there is nothing in UK legislation to stop riders from forming their own union or joining a union, nor preventing Deliveroo from engaging in collective bargaining voluntarily, this was as far as the domestic legislation is required to go. Insofar as domestic case law has interpreted Strasbourg authorities to the contrary, these should not be followed.
In light of its conclusions on issues (1) and (2), the Supreme Court did not need to consider the question of whether exclusion of riders from Schedule A1 would be a restriction necessary in a democratic society and so justified under Article 11(2).
The Supreme Court therefore dismissed the appeal.
Case comment
Whilst this case focuses on the narrow issues regarding collective bargaining in the UK, the judgment provides clarification on the conferment of trade union rights under Article 11 and further shapes the treatment of those working in the gig economy. It is now evident that a genuine unfettered substitution clause will make it difficult to demonstrate an employment relationship, although each case will be scrutinised on its own facts.
This contrasts with the Supreme Court decision two years ago where it ruled that the level of control exerted by Uber over its drivers (represented by Paul Jennings and Rachiel Mathieson of Bates Wells) created an imbalance of power and conferred worker status on Uber drivers as defined in the Employment Rights Act 1996. For more on this case and its impact visit Bates Wells wins ground-breaking worker status case against Uber in the Supreme Court.
The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.