When reviewing the rejection of an application for union recognition in R (on the application of The Independent Workers’ Union of Great Britain) v CAC and anor, the High Court held that as the Deliveroo drivers were not in an “employment relationship” (i.e. they were neither employees nor workers) they could not rely on Article 11 of the European Convention on Human Rights which gives everyone the right to form and to join trade unions to protect their interests.
The Independent Workers Union of Great Britain submitted an application to the Central Arbitration Committee (CAC) at the end of November 2016 for recognition for collective bargaining purposes in respect of a group of Deliveroo drivers or “riders” who work in the Camden & Kentish Town zone in London.
In order to gain recognition the union first had to prove that the riders were workers as defined in section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Section 296(1) (b) states that a worker is an individual who works under a contract of employment or “under any other contract whereby he [sic] undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his”.
The CAC held (see weekly LELR 555) that the riders were not workers within the meaning of section 296 because their contract contained a substitution clause stating that they were entitled to appoint someone else to work on their behalf at any time without the company’s prior approval.
As the CAC found that the substitution right was genuine and operated in practice, it was not possible to say that the drivers undertook “to do personally any work or services for another party” as required under section 296. As such, the union could not apply for recognition on their behalf.
The union appealed by way of judicial review, arguing that the CAC had failed to address its arguments in relation to Article 11 of the European Convention, which gives everyone the right “to form and to join trade unions for the protection of his [sic] interests” without any restrictions being placed on exercising those rights except where "necessary in a democratic society… for the protection of the rights and freedoms of others".
High Court decision
Dismissing the judicial review, the High Court held that although the right to bargain collectively with an employer is an essential element of Article 11, it does not follow that Article 11 confers a universal right on any trade union to be recognised in all circumstances.
Instead the right to be recognised under domestic law is defined by rules which set out “which unions should be recognised by which employers in respect of which workers and for what purposes”. In any event, as it was clear from European case law that Article 11 requires individuals to be in an employment relationship, it could not be engaged in this case as the riders were self-employed.
But even assuming that Article 11 was engaged, the Court held that restricting collective bargaining rights to workers who can show a contractual obligation of "personal performance" achieved a fair balance between competing interests. It was both rational and proportionate, it was also justified under Article 11(2) as it constituted a restriction "necessary in a democratic society… for the protection of the rights and freedoms of others".
This case is an unfortunate example of the ability of an employer to deprive a group of workers, who have very little bargaining power, of statutory rights by including a “substitution clause” in their contract. The CAC found that although only a few riders actually used a substitute, some did and, therefore the substitution clause was not a sham. The High Court concluded that it was not appropriate to exercise its powers, under the Human Rights Act, to interpret section 296 in a way which stretched the definition of “worker” to include the riders.