Independent Workers' Union of Great Britain v Central Arbitration Committee (2023)

 
Citation/case number: [2023] UKSC 43
Country: United Kingdom
Year: 2023
Court: UK Supreme Court
Status: Determined

Topic/theme: Employment relationship
Issue: Collective rights (Right to compulsory collective bargaining)
Claimant type: Trade union
Respondent type: Corporation and other
Legislation considered: Trade Union and Labour Relations (Consolidation) Act 1992 (UK), Schedule A1; European Convention on Human Rights, Article 11 

Factual background and procedural history

In November 2016, the Independent Workers' Union of Great Britain (the claimant in this case, and appellant on appeal to the Supreme Court) formally requested that Deliveroo (an interested party in this case, and second respondent on appeal to the Supreme Court) recognize it as entitled to conduct collective bargaining on behalf of riders working for Deliveroo in the Camden and Kentish Town areas of London. The request was rejected by Deliveroo, following which the claimant made an application to the Central Arbitration Committee (the defendant in this case, and first respondent on appeal to the Supreme Court) under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (UK). The Committee is a quasi-judicial body which, under Schedule A1, has the power to order an employer to recognize a union and engage in collective bargaining if the conditions set out in the schedule are met. One such condition is that the people the union seeks to represent are "workers" within the meaning of section 296 of the Trade Union and Labour Relations (Consolidation) Act.

The Committee determined that the riders in question were not "workers" under section 296. It also rejected a secondary argument put forward by the claimant based on Article 11 of the European Convention on Human Rights, which protects freedom of peaceful assembly and association, including the right to form and join trade unions. The High Court granted the claimant permission to challenge the Committee's decision by way of judicial review, but only on one ground: that the decision breached the Deliveroo riders' human rights under Article 11. The claimant argued before the High Court that Deliveroo riders fell within the class of people with rights concerning trade union membership under Article 11. Therefore, UK legislation (including section 296 of the Trade Union and Labour Relations (Consolidation) Act) ought to have been construed, pursuant to section 3 of the Human Rights Act 1998 (UK), so as to give effect to those rights.

The High Court held in favour of the Committee, finding that the Deliveroo riders did not have the right to bargain collectively under Article 11. The judge was not persuaded that the Deliveroo riders were in an employment relationship with Deliveroo, and did not consider that the case law of the European Court of Human Rights extended the right to bargain collectively beyond an employment relationship. Therefore, Article 11 was not engaged on the facts of the case.

The claimant's subsequent appeal to the Court of Appeal was dismissed. The claimant therefore appealed to the Supreme Court.

Key issues for determination

(1) Did the Deliveroo riders fall within the scope of Article 11 of the European Convention on Human Rights, such that the rights conferred by that article to join and be represented by a trade union applied to them; and (2) did Article 11 require the UK to legislate for compulsory collective bargaining?

Finding

The Supreme Court held, on the basis of European Court of Human Rights case law, that the right to form and join a trade union under Article 11 of the European Convention on Human Rights only arose in the context of an employment relationship. The concept of an employment relationship within Article 11 was an autonomous one that did not depend on the definitions of "workers" or "employees" used in domestic law. Determining whether there was an employment relationship within the meaning of Article 11 required the application of a multifactorial test, taking into account the factors set out in the International Labour Organization's (ILO) Employment Relationship Recommendation 2006 (No 198) and focusing on the practicalities of the relationship and how it operates in reality ([61]).

Applying the above principles to the facts of this case, the Supreme Court concluded that an employment relationship did not exist between Deliveroo and its riders for the purposes of Article 11. Therefore, the rights conferred by that article to join and be represented by a trade union had not been conferred on the Deliveroo riders ([73]). Factors taken into account by the court in reaching its decision included the following findings made by the Committee ([69]-[70]):

• That the contract between the riders and Deliveroo gave riders a broad and virtually unfettered right to appoint a substitute to take on their jobs. Such a broad power of substitution was, on its face, totally inconsistent with the existence of an obligation to provide personal service, which the court considered essential to the existence of an employment relationship within Article 11.
• That Deliveroo did not terminate fee per delivery contracts for a rider's failure to accept a certain percentage of orders or to make themselves sufficiently available.
• That Deliveroo did not object to riders working simultaneously for its competitors.

 
The court also had regard to additional indicators, as identified in ILO Recommendation No 198, which provided further support for its conclusion. This included the fact that riders did not have to carry out any deliveries at all, they did not work within specific working hours, their place of work was not specified or agreed, their activity was not of a particular duration or continuity, all equipment and cost of travel was at the riders' expense and they had no entitlement to annual holidays or protection from financial risk. Riders were therefore free to reject offers of work, make themselves unavailable and undertake work for competitors. The court held that these features were fundamentally inconsistent with the notion of an employment relationship ([71]-[72]).

Although the Supreme Court's finding that Deliveroo riders were not in an employment relationship for the purpose of Article 11 was sufficient to dispose of the appeal in Deliveroo's favour, the court nonetheless considered the scope of the rights that Article 11 workers enjoyed as regards collective bargaining between their union and their employer. The court referred to case law of the European Court of Human Rights which emphasised that contracting States enjoyed a wide margin of appreciation as to how they chose to protect trade union freedom and union members. The court was also of the view that the Strasbourg case law had not gone so far as to decide that Article 11 included a right to compulsory collective bargaining. Therefore, although it remained open to contracting States to go beyond the limits of Convention rights and legislate for compulsory collective bargaining (as the UK had done by enacting Schedule A1), it would not be a breach of Article 11 for a State to decline to do so ([129], [130], [134]).

Outcome

The court held that an employment relationship did not exist between Deliveroo and its riders for the purposes of Article 11. As a result, the rights conferred by that article to join and be represented by a trade union had not been conferred on the riders. The Committee had therefore been entitled to refuse to require Deliveroo to recognize the claimant for collective bargaining purposes in respect of the Deliveroo riders.

Link to judgment: Independent Workers' Union of Great Britain v Central Arbitration Committee [2023] UKSC 43 

Link to Court of Appeal judgment: Independent Workers' Union of Great Britain v Central Arbitration Committee [2021] EWCA Civ 952 

Link to High Court judgment: Independent Workers' Union of Great Britain v Central Arbitration Committee [2018] EWHC 3342 

Link to Committee decision: Independent Workers' Union of Great Britain v RooFoods Limited T/A Deliveroo, Case No TUR1/985(2016) 

Other relevant publications

Nicola Kountouris, 'Not Delivering: the UK 'worker' concept before the UK Supreme Court in Deliveroo - IWGB v CAC and another [2023] UKSC 43' (2024) European Labour Law Journal