Under Article 11 of the European Convention on Human Rights ('ECHR') there is a general right to freedom of peaceful assembly and freedom of association with others. There is also a specific right to form and join trade unions but this only applies where there is an 'employment relationship'.
In November 2016, the Independent Workers Union of Great Britain ('IWGB') applied to be recognised for collective bargaining under the Trade Union and Labour Relations (Consolidation) Act 1992 ('TULR(C)A') for a group of Deliveroo riders. The application was rejected by the Central Arbitration Committee ('CAC') on the grounds that the riders were not workers under s.296(1) TULR(C)A (the legislation which sets out the compulsory recognition procedures for collective bargaining). Delivery riders for Deliveroo worked under 'supplier agreements'. These agreements describe riders as independent contractors.
The IWGB applied for judicial review arguing that Article 11 ECHR required the CAC to interpret TULR(C)A so not to exclude riders from statutory recognition. The High Court and Court of Appeal both dismissed IWGB's argument. IWGB appealed to the Supreme Court.
The Supreme Court confirmed that the context of an 'employment relationship' under Article 11 is not impacted by domestic law definitions of workers or employees. To decide if the riders had an 'employment relationship' the focus had to be on the practicalities of the relationship and how it worked in reality regardless of the label in the agreement.
The Supreme Court confirmed the CAC had correctly scrutinised the relationship and how it operated in practice. The CAC had been right to conclude that the label in the agreement accurately reflected the reality and that it was therefore not an employment relationship. The key factors giving rise to this decision were:
- The agreement gave riders a broad and unfettered right to substitute their jobs;
- Deliveroo did not police a rider's decision to substitute;
- Riders were not criticised or sanctioned for substitutes;
- Riders' agreements were not terminated for failing to accept a certain amount of orders or failing to make themselves available for jobs;
- Deliveroo did not object to riders working for competitors at the same time as working for them;
- All equipment was at the riders' own expense;
- There were no periodic payments;
- Their place of work was not specified; and
- There was no protection from financial risk.
The Supreme Court therefore dismissed the appeal.
Comment
Whilst this case has provided certainty on the position with Deliveroo riders, other gig economy businesses may still have collective bargaining imposed on them by the CAC.
It was also noted by the Supreme Court judges that whilst the CAC decision was correct, UK legislation does not prevent the riders from forming their own union or joining one.
Written by Molly Fellows
