An agency worker’s right to equal treatment in relation to the ‘duration of working...
Deliveroo riders aren't 'workers' for collective bargaining purposes
R (on the application of the IWGB) v Central Arbitration Committee
The right to statutory recognition of a union under art. 11 of the European Convention on Human Rights (ECHR) does not apply to delivery drivers who had specifically found not to be workers as they had a genuine right of substitution which had been exercised.
In November 2017, the Central Arbitration Committee held that Deliveroo riders were not ‘workers’ as defined by s. 296 of the Trade Union and Labour Relations (Consolidation) Act (TULR(C)A) 1992, as they did not have a contractual obligation to perform work personally as they could substitute their jobs both before and after accepting a job. Consequentially the Independent Workers Union of Great Britain (IWGB) could not rely upon that Act to apply for statutory recognition to be entitled to conduct collective bargaining on behalf of the Deliveroo riders.
IWGB brought a judicial review of the CAC decision and only the ground of appeal that was allowed was that that art. 11 of the ECHR - the right to freedom of assembly and association - requires an interpretation of TULR(C)A and the ‘personal service’ element so as not to exclude the Deliveroo riders from exercising statutory rights to collective bargaining.
High Court decision
The High Court dismissed the judicial review challenge.
The critical question on art.11(2) is whether the restriction is ‘necessary in a democratic society … for the protection of the rights and freedoms of others’. As Deliveroo riders could still join a union and make voluntary arrangements then the High Court did not believe that the restriction interfered with that right.
The High Court was not required to reconsider whether, as riders were able to pass on a job to another rider or abandon a job altogether, they could not be classified as workers or employees which therefore denied them the right to union recognition. This ground of appeal had been dismissed.
The High Court confirmed that it was unable to interfere with the decision that riders were not workers. The CAC had found that there was no obligation to provide personal service as required by the definition of worker in the legislation. The CAC’s decision essentially came down to Deliveroo allowing substitution, with evidence to prove it. The right of substitution was clearly set out in new contract documentation rolled out by the employer – and it was being operated in practice. The drivers were not automatically entitled to union recognition – that particular right does not extend beyond an employment relationship.
Link to judgment: https://www.bailii.org/ew/cases/EWHC/Admin/2018/3342.html
The original decision of the CAC does buck the trend of other so-called ‘gig economy’ cases where employment status is at issue (e.g. the Addison Lee case and the Pimlico Plumbers case). In this case, based on the facts, the CAC had decided there was a genuine right of substitution which was exercised. But - and it’s an important but - these cases are particularly fact specific so there aren’t necessarily any wider implications for other gig economy employers who operate different types of business models.