Employment Law Cases

IWUGB v Central Arbitration Committee and Deliveroo

Riders for Deliveroo are not ‘workers’ and 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.

Court of Appeal decision

The appeal was dismissed.

The court 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.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2021/952.html

Comment

While the result in this case may surprise some in the light of the Uber decision, this appeal was on a narrow point 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 against the CAC’s decision on domestic law arguments such as those considered in Uber.