The union applied for a judicial review of the CAC’s ruling on five grounds, all but one of which the High Court (HC) rejected. It allowed the challenge to proceed “with some hesitation” on a single ground – namely, that the CAC had not dealt properly with IWGB’s secondary submission on the effect of collective bargaining rights in Article 11 of the European Convention on Human Rights.
The HC would go on to dismiss IWGB’s challenge, after which IWGB appealed to the Court of Appeal (CA) which came to the same conclusion. The union therefore took its case to the Supreme Court.
Supreme Court’s decision
The Supreme Court identified four issues that it needed to decide. The first was whether Deliveroo riders fell within the scope of article 11 such that the rights conferred by it to join and be represented by a trade union were conferred on them. Having dismissed an argument from the union’s counsel that these rights apply to (literally) everyone, it focused on the question of whether riders were in an “employment relationship” with Deliveroo, identified as necessary to access these rights in previous ECHR case law.
It concluded that they were not. It held that “the analysis by the courts below and by the CAC of the relationship between Deliveroo and the Riders has correctly focussed on the power to appoint a substitute” – the key question being whether the right to appoint a substitute was genuine, and not how frequently (if at all) it had been exercised, although the CAC had correctly directed itself to the question of whether the right was genuine. The Supreme Court noted that the right of substitution in Deliveroo riders’ contracts was “virtually unfettered… not limited to other Deliveroo Riders… [and] applies both before and after a Rider has agreed to make a delivery”. Such a “broad power of substitution” was “totally inconsistent with the existence of an obligation to provide personal service which is essential to the existence of an employment relationship”. The Court further noted that “there was no policing by Deliveroo of a Rider’s use of a substitute and Riders would not be criticised or sanctioned for using a substitute”, and that “Deliveroo did not object to the practice of substitution by a Rider for profit or to Riders working simultaneously for competitors of Deliveroo”.
The SC said that this in itself was enough to decide the issue for Deliveroo. However, it also noted 12 other features of the way riders work with Deliveroo, based on International Labour Organisation guidance, which it said were fundamentally inconsistent with an employment relationship too, and which are likely to be cited in future cases. These were that:
- Riders did not have to carry out any deliveries at all;
- Riders did not work within specific working hours. They operated if and when they chose;
- Riders’ place of work was not specified or agreed but they operated where they chose;
- Riders’ activity was not of a particular duration, nor did it have a certain continuity; riders started and stopped when they chose;
- Riders were not required to be available;
- As regards tools, materials and machinery, all equipment was at the riders’ expense. Riders used their own cycles and mobile phones;
- There was no periodic payment. Remuneration depended on whether Riders chose to make deliveries and how many they made;
- Deliveries were not necessarily or typically Riders’ sole or principal source of income. Even where they were, a “goodly proportion” may earn from Deliveroo’s direct competitors, potentially by undertaking the competitor’s work in preference;
- There was no payment in kind such as food, lodging and transport;
- There was no entitlement to weekly rest and annual holidays;
- There was no reimbursement for the cost of travel; and
- There was no protection from financial risk for Riders, whether in the form of insurance, guaranteed earnings or otherwise.
The second issue was whether, if riders had rights under Article 11, these rights required UK law to compel Deliveroo to engage in compulsory collective bargaining with the union either in all circumstances or some. As the first issue had been decided in Deliveroo’s favour and that was itself determinative of the case strictly the Court did not need to decide this, but it took the opportunity to clarify the position and concluded that Article 11 did not create any right to compulsory collective bargaining. ECHR member states enjoyed a “wide margin of appreciation as to how trade union freedom and protection of the occupational interests of union members are secured”, and while a statutory framework for compulsory collective bargaining (such as that enacted by the UK on which IWGB relied in bringing its claim) was one way of doing this, it was not the only or an essential way.
The third and fourth issues were whether, if riders had a right to require Deliveroo to bargain with IWGB, their exclusion from the compulsory recognition framework because of the restrictive definition of “worker” in domestic law violated that right or was justified, and whether, if there had been such a violation, the relevant domestic law definition could be “read down” so as to include them. The Court concluded that, having found in Deliveroo’s favour on issues 1 and 2, it did not need to decide these points.
Implications
This judgment provides important clarification on a number of points.
First, it resolves a debate sparked by Pimlico Plumbers Ltd v Smith and picked up in later cases such as Uber v Aslam (both also decisions of the Supreme Court) as to precisely which cases are “sole test” cases – meaning, in deciding whether someone is a worker, all that matters is whether there is an obligation of personal performance – and which are cases where an assessment of the “dominant feature” of the relationship is helpful: it is now clear that wherever there is a genuine right of substitution that is indeed the “sole test”, and the question of “dominant feature” will only assist in cases where there is no right at all, or a very heavily qualified one. Second, it provides further important guidance on who exactly has trade union rights under Article 11 and what amounts to an “employment relationship” providing a right to seek recognition.
Finally, it confirms that, at least as far as the highest UK court is concerned, Article 11 does not create any right to compulsory collective bargaining, rowing back from a position that had been hinted at in a series of recent cases decided by the Court of Appeal. The practical implication of this is that an employer is free to choose which union(s) it might wish to recognise, without fear of a human rights based challenge that it has not chosen its workers’ preferred trade union, as the Court of Appeal recently suggested in Cordant Security might be possible.
Independent Workers Union of Great Britain v Central Arbitration Committee and another