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Lewis Silkin successful in Deliveroo Supreme Court rider status challenge

21 November 2023

By a unanimous 5-0 verdict, the Supreme Court ruled that Deliveroo riders are not in an “employment relationship” for the purposes of European human rights law, and cannot proceed with an application for recognition of their trade union.

Colin Leckey, relationship partner for Deliveroo, commented “We are very pleased to have helped secure this victory for Deliveroo, which brings to a conclusion seven years of litigation in which our client has succeeded at every stage. The Supreme Court decision provides welcome certainty for platform economy companies with highly flexible operating models in which individuals have genuine freedom about whether and when to work. The question of whether such persons are “workers” under domestic law had long since been resolved in Deliveroo’s favour, and now arguments based on human rights law have been finally decided for the company as well.

Key findings of Lord Lloyd Jones and Lady Rose, who gave the lead judgment with which the other judges concurred, included the following:

  • Confirmation that rights to bargain collectively under article 11 of the European Convention on Human Rights do not apply to “everyone”, but only those in an “employment relationship” with a work provider.
  • Deliveroo riders were not in such an “employment relationship” with Deliveroo. The “virtually unfettered… broad power of substitution” in riders’ agreements, which applied before and after a rider had agreed to make a delivery, was “totally inconsistent with the existence of an obligation to provide personal service”, which is an inherent feature of an employment relationship. The Central Arbitration Committee (“CAC”), which rejected the initial application for recognition on behalf of the IWGB trade union, had rigorously scrutinised the operation of the substitution clause in Deliveroo’s contracts and correctly concluded that it was genuine. The CAC had correctly focused on the power to appoint a substitute; this was what mattered, rather than how frequently it was used.
  • Even leaving aside substitution, many other features provided “strong support” for the conclusion there was no employment relationship with riders. These included: the fact that riders do not have to carry out deliveries at all; the absence of any specific hours; and the absence of any requirement for riders to be available at any time.
  • While it did not strictly need to decide the point having found that there was no employment relationship, the Court also took the opportunity to determine whether there was any right under Article 11 to compulsory collective bargaining. It concluded that there was not. 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. In reaching this decision, the Court confirmed that a series of union-friendly decisions by the Court of Appeal that suggested that such a right to compulsory collective bargaining might exist should not be followed in future.

Lewis Silkin Partner Colin Leckey, supported by fellow Partners Tarun Tawakley (himself Deliveroo’s former Global Head of Employment) and David Hopper, acted for Deliveroo. The Firm instructed Chris Jeans KC, Tom Cross and Raphael Hogarth of 11 KBW. The Firm was instructed by Deliveroo’s in house employment team, headed by Lauren Pullen-Stanley and deputies Heather Barc and Jenny Ramsey.

The IWGB was represented by Harrison Grant Ring and instructed Lord Hendy KC, Katharine Newton KC and Madeline Stanley of Old Square. The Government Legal Service intervened in the case and was represented by Daniel Stilitz KC and Stephen Kosmin.

Read more on the judgment  here

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