Independent Workers Union of Great Britain v Central Arbitration Committee & Anor [2023] UKSC 43

Deliveroo riders sought trade union recognition for collective bargaining through the Independent Workers Union. The Supreme Court held that the riders were not in an employment relationship within Article 11 ECHR, and that Article 11 does not confer a right to compulsory collective bargaining. The appeal was dismissed.

Facts

Deliveroo riders working in the Camden and Kentish Town area of London joined the Independent Workers Union of Great Britain (the Union). The Union sought recognition from Deliveroo for collective bargaining purposes under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Deliveroo refused recognition, and the Union applied to the Central Arbitration Committee (CAC).

The CAC found that the riders were not ‘workers’ within the meaning of section 296 TULRCA because, under their contracts, they had a genuine and virtually unfettered right to appoint substitutes to perform deliveries on their behalf. The riders were not obliged to work, could reject orders, work for competitors, and determined their own working hours. The Union argued alternatively that excluding the riders from the statutory definition breached their rights under Article 11 of the European Convention on Human Rights (ECHR).

Issues

Issue 1

Whether the Deliveroo riders fell within the scope of Article 11 ECHR such that they were entitled to trade union rights including collective bargaining.

Issue 2

Whether Article 11 ECHR confers a right requiring the United Kingdom to legislate for compulsory collective bargaining, either universally or where such rights have been conferred on some workers.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Lloyd-Jones and Lady Rose delivered the main judgment, with which Lord Briggs, Lord Stephens and Lord Richards agreed.

Issue 1 – Employment Relationship

The Court held that the trade union rights under Article 11 are conferred only on persons within an ’employment relationship’, an autonomous concept under the Convention. Applying the criteria from Sindicatul Păstorul Cel Bun v Romania and ILO Recommendation No 198, the Court examined the reality of the riders’ relationship with Deliveroo.

The power conferred on Riders under the new contract to appoint a substitute is virtually unfettered and, unlike the position in Pimlico Plumbers, is not limited to other Deliveroo Riders. As the CAC emphasised, it applies both before and after a Rider has agreed to make a delivery. Such a broad power of substitution is, on its face, 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.

The Court found the riders were not in an employment relationship because they: had no obligation to work; could appoint substitutes without restriction; determined their own hours and locations; could work for competitors simultaneously; provided their own equipment; and bore financial risk.

Issue 2 – Right to Compulsory Collective Bargaining

The Court analysed the Strasbourg jurisprudence, including Demir v Turkey and Unite the Union v United Kingdom. It concluded that Article 11 does not currently impose a positive obligation on States to provide for compulsory collective bargaining.

We therefore reject the Riders’ case on Issue 2. In our judgment there is, on the current state of the Strasbourg Court’s jurisprudence, no right conferred by article 11 to compulsory collective bargaining.

The Court held that domestic cases interpreting Unite the Union as establishing such a right had misread the Strasbourg decision and should not be followed on this point.

Implications

This judgment clarifies that gig economy workers with genuine flexibility regarding substitution, working hours, and the ability to work for competitors are unlikely to fall within the scope of Article 11 ECHR employment rights. It also establishes that Article 11 does not currently require States to enact compulsory collective bargaining legislation. The decision emphasises the importance of examining the reality of working relationships rather than contractual labels, whilst confirming that genuine contractual freedoms which are actually available to workers will be given effect.

Verdict: The Supreme Court unanimously dismissed the appeal, holding that the Deliveroo riders were not in an employment relationship for the purposes of Article 11 ECHR and therefore did not have trade union rights under that article. Additionally, Article 11 does not confer a right to compulsory collective bargaining.

Source: Independent Workers Union of Great Britain v Central Arbitration Committee & Anor [2023] UKSC 43