November 2023 - United Kingdom - DELIVEROO - IWGB / The Central Arbitration Committee
Ruling on November 21, 2023
Authority: The Supreme Court
Parties: Independent Workers Union of Great Britain (Appellant) v Central Arbitration Committee and another (Respondents)
Subject: Collective bargaining rights in respect of Deliveroo riders
Summary of facts: On 28 November 2016, the Independent Workers Union of Great Britain submitted an application to the first respondent, the Central Arbitration Committee, that the Union should be recognised by Deliveroo for collective bargaining in respect of a group of Deliveroo riders in the Camden zone. Applications are considered by the Committee in accordance with Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"). The Committee refused to accept the Union's application on the basis that the riders were not "workers" within the meaning of the 1992 Act. This was because Deliveroo did not require them to provide delivery services personally but permitted the use of substitutes. Both the High Court and the Court of Appeal dismissed the Union's claim for judicial review of the Committee's decision. The Union now appeals to the Supreme Court.
Legal question: Did the CAC's refusal to accept the Union's application to be recognised by Deliveroo for collective bargaining interfere with the rights of Deliveroo riders to form and join a trade union under Article 11 of the European Convention on Human Rights? If so, was this interference justified? Should the courts below have construed section 296(1)(b) of the 1992 Act so as to give effect to Article 11?
Considerations: The analysis by the courts below and by the Committee of the relationship between Deliveroo and the Riders has correctly focussed on the power to appoint a substitute. The power conferred on Riders under the new contract to appoint a substitute is virtually unfettered and, unlike the position in Pimlico Plumbers, is not limited to other Deliveroo Riders. As the Committee emphasised, it applies both before and after a Rider has agreed to make a delivery. Such a broad power of substitution is, on its face, totally inconsistent with the existence of an obligation to provide personal service, which is essential to the existence of an employment relationship within Article 11. Riders would not be criticised or sanctioned for using a substitute despite the purported freedom to do so.
Additionally, Riders do not have to carry out any deliveries at all. Riders do not work within specific working hours. They operate if and when they choose. Their place of work is not specified or agreed. Their activity is not of a particular duration, nor does it have a certain continuity. Riders start and stop when they choose. They are not required to be available. As regards tools, materials and machinery, all equipment is at the Riders’expense. Riders use their own cycles and mobile phones. There is no periodic payment. Remuneration depends on whether Riders choose to make deliveries and how many they make. Deliveries are not necessarily or typically their sole or principal source of income. Riders are thus free to reject offers of work, to make themselves unavailable and to undertake work for competitors. Once again, these features are fundamentally inconsistent with any notion of an employment relationship.
Ruling: The Riders are not in an employment relationship for the purpose of the trade union rights conferred by article 11 is sufficient to dispose of the appeal in Deliveroo’s favour.
