Employment Law Cases

IWUGB v Central Arbitration Committee and Deliveroo

Riders for Deliveroo are not in an ‘employment relationship’ for the purposes of European law such as to enable them to seek compulsory union recognition.

Background

In 2017 the Central Arbitration Committee (CAC) rejected an application from the Independent Workers Union of Great Britain (IWUGB) for collective bargaining rights in respect of Deliveroo riders. The CAC ruled that they weren’t ‘workers’ under s. 296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992. The riders had a genuine right to use a substitute to carry out deliveries and this was incompatible with an obligation to provide personal service. Whilst for workers, the right to collectively bargain (and seek recognition) is part of art 11 rights under the European Convention on Human Rights (ECHR), this particular right did not extend to independent contractors. The IWUGB applied for judicial review of the CAC’s decision where the High Court rejected its challenge. None of the ECHR case law extended art. 11 rights outside an employment relationship, and the riders were not in such a relationship with Deliveroo. IWUGB appealed to the Court of Appeal. Dismissing the appeal, the Court of Appeal rejected IWUGB’s argument that art. 11 applies to everyone and that therefore no part of its protections can be restricted to any specific classes of person, such as those in an employment relationship. The CAC had been entitled to find that the riders were genuinely under no obligation to provide services personally, and that they had a virtually unlimited right of substitution. The obligation of personal service is an ‘indispensable feature of the relationship of employer and worker’ and, as such, the court could see no reason why its importance should be any the less in the context of art. 11 rights. The issue of how often in practice a worker exercises the right to provide a substitute was not relevant (save to the issue of whether the right is a genuine one) and it cannot be the case that whether riders working on identical terms fall to be treated as workers depends on how often they choose to take advantage of their right to do the work via a substitute. IWUGB appealed to the Supreme Court.

Supreme Court decision

The appeal was dismissed.

The court considered the scope of art. 11 which protects the general rights of freedom of peaceful assembly and freedom of association with others, and a specific right to form and join trade unions. Looking at art. 11 and the associated case law of the ECHR, it’s clear that:

• The right to form a trade union only arises in the context of an ‘employment relationship’.
• To decide whether such a relationship exists for the purposes of art. 11, regard must be had to factors set out in the International Labour Organisation Employment Relationship Recommendation 2006 (No. 198). This states 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 consideration of many different factors, focusing on the practicalities of the relationship and how it operates in reality.

Applying the above, the Supreme Court could find no fault with how the CAC had assessed the relationship between Deliveroo and its riders. It had been entitled to find that the provisions in the agreement between Deliveroo and its riders genuinely reflected the reality of their relationship, and that it was not an employment relationship.

Comment

While the result in this case may surprise some in the light of the Uber decision, this appeal was on a narrow point in relation to the right to form a trade union and concerned the scope of art. 11 and the personal service obligation, neither of which featured in Uber. Indeed, the High Court refused IWUGB permission to appeal to the Court of Appeal against the CAC’s decision on domestic law arguments such as those considered in Uber. Therefore although of interest, it is a fact sensitive case based on different tests to those applied when considering whether those working are workers under UK employment law.