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25 February 2019

151: Right to bargain collectively under Article 11 of the European Convention on Human Rights does not apply to self-employed

The High Court has dismissed the challenge by the Independent Workers Union of Great Britain (IWGB) to its failed application for statutory recognition in respect of a group of Deliveroo’s riders (R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee).

Unions may apply to the Central Arbitration Committee (CAC) for statutory recognition to conduct collective bargaining on behalf of workers in a particular bargaining unit in relation to pay, hours and holidays.

A union must be able to show that it has the support of a majority of workers in the bargaining unit. The IWGB had applied to the CAC for statutory recognition in respect of a group of Deliveroo’s food delivery riders based in Camden and Kentish Town. Although the Union met the other criteria for recognition, its application failed because the CAC decided that the riders were self-employed, not workers, since their contracts contained a genuine right to use a substitute to make deliveries.

The IWGB challenged this decision by means of judicial review in the High Court, claiming that the right to bargain collectively is a fundamental right under Article 11 of the European Convention on Human Rights. The High Court has now rejected this challenge on the basis that Article 11 only applies to individuals in an employment relationship, and not to individuals whose contracts do not satisfy the requirement of personal service. Since the CAC had found that the Deliveroo riders had a contractual right to use a substitute, Article 11 did not apply to them. The High Court also held that even if Article 11 had been engaged, it was fair and proportionate to limit the right to statutory recognition for collective bargaining to individuals in an employment relationship. The interference with the riders’ rights was limited as they could still join a union or enter into voluntary bargaining arrangements.

Given the variety of business models used in the gig economy, this case does not necessarily have wider implications, but it does reinforce Deliveroo’s argument that its delivery riders are genuinely self-employed, rather than workers. The IWGB has indicated that it will appeal the High Court’s decision in the Court of Appeal.

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