Supreme Court makes important ruling on collective bargaining for delivery drivers

The Supreme Court has found that Deliveroo delivery riders are not “workers” within the meaning of the UK collective bargaining recognition procedures (the recognition procedures. Therefore, the union was excluded from applying for collective bargaining rights on their behalf.

In a significant ruling today, upholding the Court of Appeal’s conclusion that the Central Arbitration Committee (the CAC) had been right to reject an application for trade union recognition on behalf of delivery riders, the Supreme Court provides helpful clarifications regarding access to the recognition procedures following similar conclusions by the lower courts. While this case does not present a change in approach or in practice for trade union recognition applications, it does provide helpful clarification of the law as it stands (for now). The issues around worker status and the impact of the contractual right of individuals to provide a substitute in their place remain under the spotlight, both legally and, with a General Election pending, politically.

This case is unlikely to present the last word on collective bargaining rights for delivery riders or the wider debate over appropriate employment protections for platform workers. 

Background

In 2016, the Independent Workers Union of Great Britain (IWGB) applied to become a recognised trade union for collective bargaining in respect of a group of Deliveroo delivery riders. It was seeking to force Deliveroo to negotiate with it over pay, hours and holiday under the recognition procedures, set out in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A).

The delivery riders worked under contractual terms which described them as “independent contractors”. There was no obligation to accept work nor any obligation on Deliveroo to offer work. What proved particularly significant was that the contracts stated that the riders could offer a substitute to carry out deliveries in their place. There were many aspects of the delivery riders contracts and practices which the CAC felt could be problematic to worker status. Crucially, the absence of a requirement of personal service was fatal to securing worker status under TULR(C)A because the definition specifically includes that requirement. As non-workers, the CAC found the riders to be ineligible to raise a recognition claim and rejected the IWGB application for recognition.

The IWGB challenged the CAC decision in the courts by way of judicial review. It was permitted to proceed with the part of its case that raised a potential human rights issue regarding the right of collective bargaining under Article 11 of the European Convention on Human Rights (Article 11). Both the High Court and (later) the Court of Appeal concluded that Article 11 was not infringed by the CAC’s rejection of IWGBs recognition application nor by the recognition procedures. The Court of Appeal agreed with the CAC  that Article 11 rights require an employment relationship to exist. Furthermore, the Court of Appeal found that, even if Article 11 were to give non-workers access to the recognition procedures in principle, UK law qualifies any such right and should take precedence.

The Supreme Court Decision

The Supreme Court unanimously rejected IWGB’s appeal, upholding the conclusions of the CAC and the lower courts that the riders were not in an employment relationship for the purposes of the recognition procedures. As such, the union was excluded from applying for collective bargaining rights on their behalf. It was noted that this did not preclude alternative, voluntary bargaining agreements being entered into if the parties wished.

On the critical question of whether Article 11 was engaged, the Supreme Court concluded that the broad power of substitution, which applied to the delivery riders, is entirely inconsistent with an obligation to provide personal service, personal service being  essential to the existence of an employment relationship within Article 11. The Court rejected arguments put forward by IWGB that Article 11 provides a free standing right for workers to require their employer to bargain with their union. It was found that there was no European case law to support this assertion. Furthermore, even if the riders were able to engage Article 11, it would not be a breach of their Article 11 trade union rights for UK law to define those who benefit from the recognition procedures under TULR(C)A in a way which excludes them.

In appraising the wider question of worker status and the conclusions of the lower courts, the Supreme Court reiterated the importance of assessing working practices and not merely contractual terms. It cited previous significant case law on this issue, such as Autoclenz Ltd v Belcher and Pimlico Plumbers Ltd v Smith. The Court was satisfied that the CAC had correctly focussed on the power to appoint a substitute and had scrutinised the substance (not merely the contractual terms) of the relationship in reaching its decision to reject the recognition application.

Comment

The employment status of platform workers has proved a particularly contentious issue in recent years, the debate focusing on whether they are genuinely “self-employed” or in fact  “workers”. Crucially, workers enjoy greater employment law protections. Establishing a genuine right of substitution, even if that right is rarely exercised, has proved fatal to claims alleging worker status and to associated employment law protections. This includes seeking statutory recognition, as in this case. 

The Supreme Court decision clarifies important legal issues and arguments arising in this case as regards the application of the recognition procedures. It also offers a degree of reassurance regarding the current understanding of the law.  However, what the issues on appeal did not allow the court an opportunity to clarify is ongoing debate over substitution as a determinator of worker status, particularly for current working models. Questions over personal service and substitution continue to be a source of practical and legal uncertainty for worker status and rights. It therefore remains important that businesses remain vigilant to potential exposure to future claims and regularly review their contract terms and working arrangements to mitigate such risks.

The question of appropriate determinants of worker status continues to evolve and to be challenged. As a result, future ability of platform workers to obtain collective bargaining cannot be ruled out. The Government has previously floated ideas for change and the Labour Party has made clear that a review of employment status and legal protection is squarely within its sights, were it to form the next Government.  

For further information, please contact:

Thomas Player , Partner

Emma Humphreys , Partner

Clare Ward , Partner

Chris Mordue , Partner

Stephen Chegwin , Principal Associate

John Morgan , Principal Associate