A blow - possibly fatal - to the IWGB’s quest for union recognition with Deliveroo
Image of Jason Galbraith-Marten KC, Sheryn Omeri KC and Caitlin Page
Independent Workers Union of Great Britain (Appellant)
v
Central Arbitration Committee and another (Respondents)
[2023] UKSC 43
Summary
On 21 November 2023, the Supreme Court handed down its long-awaited judgment in the Deliveroo case, dismissing the appeal of the IWGB trade union. The Court confirmed that the union is not entitled to apply for statutory recognition under the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) because its members, Deliveroo’s delivery riders (‘the Riders’), are not workers within the autonomous concept under article 11 of the European Convention on Human Rights (‘ECHR’).
The Supreme Court held that only those in an ‘employment relationship’ are entitled to rely on the protections available to trade union members under article 11 of the ECHR.
The appeal to the Supreme Court had proceeded on the basis that it was accepted that the Riders do not fall within the domestic definition of “worker” in s.296 of TULRCA. However, the judgment is of wider interest because of observations made by the Court on the criteria for identifying an employment relationship, both under Convention law and under domestic law. The Court confirmed that an obligation to do work or perform services personally is an essential requirement of an employment relationship such that an unfettered right to use a ‘substitute’ is fatal. Interestingly, the Court determined that a right of substitution which involved some ‘interest’ on the part of the putative employer in the attributes of the substitute might nevertheless be unfettered. Furthermore, the Court observed that the Riders’ freedom to reject offers of work, to make themselves unavailable and to undertake work for competitors are features “fundamentally inconsistent with any notion of an employment relationship”.
Background
A substantial number of Deliveroo riders are members of the IWGB. In November 2016, the IWGB made a request for recognition for collective bargaining under Schedule A1 to TULRCA.
Deliveroo declined to recognise the IWGB and, later that month, the IWGB made an application to the Central Arbitration Committee (‘CAC’) to order it to do so.
Shortly before the hearing in the CAC, Deliveroo introduced new contracts for the Riders. The new terms included (materially) [see paragraphs 23, 25 of the Supreme Court judgment]:
- The right to appoint a substitute to carry out deliveries on a rider’s behalf. While the contractual terms imposed some limits on the appointment of substitutes, in reality substitutions were neither supervised nor approved by Deliveroo and the rider was entirely responsible for their substitute, including for their insurance.
- The relationship between the Riders and Deliveroo was not exclusive. Riders were entitled to work simultaneously for competitors.
- There was no minimum service or time commitment. Riders were free to accept or reject any order and to make themselves unavailable at any time via the use of an ‘unavailable’ status.
- Riders would provide their own equipment and would not be required to wear Deliveroo-branded clothing.
The CAC heard the case in November 2017. It held that, for a union to be recognised for the purpose of collective bargaining under TULRCA its members had to be ‘workers’ within the meaning of s 296(1)(b) of that Act, and that the Riders did not fall into this category [33]. The fact that they were entitled to appoint a substitute was fatal. It also held that they were not entitled to the benefit of article 11 of the ECHR for the same reason.
The CAC also rejected an argument that a failure to compel Deliveroo to recognise the IWGB gave rise to a breach of the State’s positive obligation to uphold the right to freedom of association under article 11 of the ECHR [4].
The IWGB was granted permission to challenge the CAC’s decision by way of judicial review on the article 11 ground only. The IWGB’s judicial review challenge was dismissed by Supperstone J in December 2018, and that judgment was upheld by the Court of Appeal in June 2021 [5, 6, 9].
The issues
IWGB’s challenge proceeded on the basis that, notwithstanding the Riders did not fall within the domestic definition of ‘worker’ (because of the lack of an obligation of personal service), they nonetheless fell into the class of persons entitled to rely on article 11 ECHR [8].
Four issues were raised before the Supreme Court, only two of which were decided, namely:
- Whether the Riders were a class of persons who fell within the scope of article 11 ECHR and were thereby entitled to be represented by their trade union.
- If so, whether article 11 ECHR imposed a positive obligation on the UK to legislate to require Deliveroo to engage in collective bargaining with the IWGB.
The judgment
Article 11 ECHR enshrines the right to freedom of assembly and association, including the right to join and form trade unions:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society […]
Who is entitled to trade union protections under article 11 ECHR?
The IWGB argued that the right to form and join trade unions under article 11(1) ECHR was enjoyed by every individual with an occupational interest to protect: an employment relationship was not a pre-condition [38].
The Supreme Court rejected this argument. On reviewing the case law of the European Court of Human Rights (‘ECtHR’), the Court of Justice of the European Union (‘CJEU’) and domestic courts, it decided that trade union rights enshrined under article 11(1) ECHR were conferred only within the context of an employment relationship [61].
What counts as employment for purposes of article 11 ECHR?
The Court held that ‘employment’ under article 11 was an autonomous concept, distinct from any definitions in domestic law. A multifactorial analysis was required to determine whether there was an ‘employment relationship’ for the purposes of article 11, focusing on the practicalities of the relationship and how it operates in reality [61].
The Court concluded that the relationship between Deliveroo and the Riders was not an ‘employment relationship’ under article 11. The Court was particularly persuaded by Riders’ power to appoint a substitute which, it said, was ‘virtually unfettered’ and was not limited to other Deliveroo riders. Such a broad power of substitution was ‘totally inconsistent with the existence of an obligation to provide personal service which is essential to the existence of an employment relationship within article 11’ [69].
This was so even though the contractual terms stated that a substitute could not include an individual who had previously had their Supplier Agreement with Deliveroo terminated for a serious material breach of contract or who, while acting as a substitute, had engaged in conduct which would have provided grounds for such termination. Moreover, if the substitute used a different vehicle from the Rider seeking to engage them, the Rider was contractually obliged to notify Deliveroo in advance.
The Court emphasised the importance of looking behind the contractual terms to the substance of the relationship between Deliveroo and the Riders: this meant examining how the contract (in particular the substitution provisions) operated in reality and whether the terms genuinely reflected the true relationship. The Supreme Court was satisfied that it did. In particular [70]:
- There was no policing of or limitation on the use of substitutes, despite some limitations in the written terms. In this way the case provides an example of where examining the reality of the working relationship may operate in favour of the putative employer.
- There were no sanctions for Riders in failing to accept a minimum number of orders or in failing to make themselves sufficiently available.
- There was no objection to Riders using substitutes for profit or to working simultaneously for competitors.
This was so in spite of there being little evidence that substitution was used in practice and that there were practical disincentives for working for multiple delivery services simultaneously [27, 30].
Although the appeal failed on that point alone the Supreme Court identified a number of features that it said were “fundamentally inconsistent” with an employment relationship [71]:
- Riders were not subject to minimum time commitments or even any general requirement to be available.
- There was no specified place of work beyond their designated area.
- All equipment was supplied at the Riders’ expense
- The Riders were not eligible for any entitlements typical of employment relationships, e.g. payments in kind, leave days, or travel reimbursements
- The Riders had no protection from financial risk.
Does article 11 ECHR require the UK to legislate to compel an employer to recognise and negotiate with a union?
In the second issue for determination, the IWGB invited the Supreme Court to find that article 11 imposed a positive obligation on the UK to enact legislation which would confer a right on trade unions to compel an employer to bargain collectively with their union [127]. Although the Court’s decision on the first issue was sufficient to dispose of the appeal, the Court nevertheless went on to decide this point.
The IWGB argued that a line of ECtHR case law (materially, Demir v Turkey [2009] IRLR 766 and Unite the Union v United Kingdom [2017] IRLR 436) had evolved so as to expand the scope of article 11 to encompass such a positive obligation [127].
The Court rejected this argument: there was nothing in Strasbourg case law to suggest a recognition that international labour norms had evolved to justify such an expansion of article 11. Instead, contracting States were afforded a wide margin of appreciation in choosing how to protect trade union freedoms [128, 129, 131].
The IWGB’s alternative argument that – had it been found that the Riders were article 11 workers – their exclusion (by virtue of not being s 296 workers) from the compulsory bargaining provisions of Schedule A1 TULRCA would have to be justified as ‘necessary’ under article 11(2) also failed [135-138].
A copy of the full judgment can be found here:
https://www.supremecourt.uk/cases/docs/uksc-2021-0155-judgment.pdf