Employment status of Deliveroo riders

The Supreme Court has recently handed down its decision in a case brought on behalf of Deliveroo riders, who were seeking to recognise the IWGB union under the statutory recognition procedure for collective bargaining purposes.

Independent Workers Union of Great Britain v Central Arbitration Committee and another [2023] UKSC 43

Facts of the case

The riders were engaged by Deliveroo as ‘independent contractors’, with no obligation on Deliveroo to provide work and no obligation on the riders to be available for or to accept jobs. The riders were also permitted to provide a substitute rider, without prior approval by Deliveroo.

In 2016, the IWGB applied to the Central Arbitration Committee (CAC) on behalf of a group of Deliveroo riders to be recognised for collective bargaining purposes under the compulsory trade union recognition procedure, which is set out in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A). The CAC rejected the application on the basis that the riders were not ‘workers’ within the meaning of TULR(C)A, meaning they were not eligible for trade union recognition. The existence of an “almost unfettered” right of substitution was fatal to the argument that the riders’ contracts were for the provision of personal service.

The IWGB applied to the High Court for a judicial review of the CAC’s decision on the basis that Article 11 of the European Convention of Human Rights (ECHR) (freedom of assembly and association) applied to the riders, so the obligation for personal service should not exclude them from the trade union recognition procedure. This argument was dismissed by both the High Court and on appeal to the Court of Appeal.

IWGB appealed to the Supreme Court.

Supreme Court’s decision

The Supreme Court has dismissed the union’s appeal, finding that Article 11 does not apply to the statutory recognition procedure.

Case law on rights under Article 11 ECHR makes it clear that the right to form a trade union only arises in the context of an ‘employment relationship’. This concept does not depend on domestic definitions of ‘employee’ or ‘worker’, but instead the Court referred to factors set out in a Recommendation (2006, number 198) of the International Labour Organisation. The categorisation depends on factors related to the performance of the work and the remuneration of the worker, rather than how the relationship is characterised in the contract.

The Court was satisfied that the CAC had applied the correct factors in its scrutiny of the relationship between Deliveroo and the riders. It was therefore entitled to conclude that the contract reflected the reality of the arrangement in designating the riders as independent contractors. In particular, the very broad right to appoint a substitute to take on their jobs was inconsistent with there being an employment relationship. Riders were free to work (or not) at their own convenience and were not penalised for failing to accept a certain percentage of orders. In addition, the riders were free to work (simultaneously) with Deliveroo’s competitors and provided all their own equipment at their own expense. The riders were therefore not in an ‘employment relationship’ for the purposes of Article 11.

The Court further held that Article 11 does not in any event include a right to compulsory collective bargaining, even for those workers who are in an employment relationship. Individual states have a wide margin of discretion in how they choose to protect trade union freedom. They can choose to go further than the ECHR requires, but it would not be a breach of Article 11 for a state to elect not to legislate for compulsory collective bargaining.

The Birketts view

This decision is in some ways an outlier, following a long series of cases involving the gig economy in which ‘worker’ status was successfully established on behalf of the claimants. Most of those cases were claims for working time rights – particularly the right to take paid holiday – under domestic legislation. Courts and tribunals have set out a number of factors to take into account in deciding whether individuals should be regarded as ‘employees’ or ‘workers’, or if they are genuinely self-employed.

The Supreme Court’s decision in this case does not change the existing status tests for the purpose of establishing employment rights. Instead, it supports the contention that if there is a genuine and unfettered right to substitution, this is inconsistent with the obligation of personal service and so will defeat a claim for worker status, unless there are other factors that point against genuine self-employment.

The case also confirms that an employer will not be in breach of Article 11 convention rights if it does not recognise a trade union for collective bargaining rights in respect of its workforce. Deliveroo has in fact since entered into a voluntary partnership agreement with the GMB union, granting the union collective bargaining rights on the basis the riders are self-employed workers.