The Supreme Court has held in Independent Workers Union of Great Britain v Central Arbitration Committee and another that riders working for Deliveroo were not covered by the right to form and join a trade union under Article 11 of the European Convention on Human Rights because there was no employment relationship between them.
The Independent Workers Union of Great Britain (IWGB) applied to the Central Arbitration Committee (CAC) under the statutory recognition procedure in Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) to be recognised by Deliveroo for collective bargaining in respect of a group of riders in its Camden and Kentish Town food delivery zone. The riders work under non-negotiable supplier agreements which describe them as independent contractors and state that there is no obligation on Deliveroo to provide work and no obligation on a rider to be available at any time or for any duration. Riders are not obliged to accept any jobs offered and may engage or employ a substitute without Deliveroo's prior approval. Riders provide the most essential items for the work: a bike and a phone.
The CAC rejected the IWGB's application on the basis that, as the riders were not "workers" as defined by TULRCA, they were ineligible for trade union recognition. The right to provide a substitute to perform deliveries was genuine and, as this was incompatible with personal service, it was fatal to the IWGB's application. The IWGB applied for judicial review of the CAC's decision on the basis that the definition of "worker" under TULRCA should be interpreted so as not to exclude Deliveroo riders from exercising Article 11 rights (the right of "everyone" to freedom of assembly and association, including the right to form and join trade unions).
Both the High Court and the Court of Appeal rejected IWGB's argument. The Supreme Court has now dismissed the appeal. It held that the riders did not fall within the scope of an employment relationship for the purposes of Article 11 and so the trade union rights conferred by Article 11 were not conferred on them. Whether an "employment relationship" exists is determined by the criteria referenced in the International Labour Organisation (ILO) Recommendation rather than by reference to any definition in domestic law. The Recommendation makes the point that the 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 arrangement agreed between the parties.
The Supreme Court noted that the effect of this approach is broadly in parallel with UK domestic law. It found that the riders' power to appoint a substitute was virtually unfettered and was not limited to other Deliveroo riders. Such a broad power of substitution was totally inconsistent with an obligation to provide personal service which was essential to the existence of an employment relationship for the purposes of Article 11.
Take note: It's clear from the IWGB decision that the reference to the right of "everyone…to form and to join trade unions" is limited to those who have an "employment relationship" with their employer. It may be though that, in a different scenario where worker or employee status is established, gig economy workers would be deemed to satisfy the "employment relationship" requirement and therefore be able to unionise.