434: Supreme Court confirms Deliveroo riders do not have the right to form or join a trade union

Article 11 of the European Convention on Human Rights (ECHR) states that everyone has the right to freedom of association with others, including the right to form and join trade unions. Case law has established that this Article 11 right is dependent on the existence of an employment relationship.

In Independent Workers Union of Great Britain (IWGB) v Central Arbitration Committee and RooFoods Ltd t/a Deliveroo, the Supreme Court has unanimously dismissed the IWGB’s claim under Article 11 of the ECHR to be recognised for the purpose of collective bargaining in respect of Deliveroo riders.

The IWGB initially applied to the Central Arbitration Committee under the statutory recognition procedure in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to be recognised by Deliveroo for collective bargaining on behalf of a group of riders. This application was rejected because the riders were held to be independent contractors, and not workers as required by TULRCA. The IWGB appealed on the basis that the definition of a worker in TULRCA should be interpreted so as to allow the riders to exercise their rights under Article 11 of the ECHR. This argument was rejected by the High Court and the Court of Appeal.

The Supreme Court has now also rejected the union’s appeal. It has confirmed that for the purposes of Article 11, the right to form and join a trade union only applies where there is an employment relationship, and that employment status must be determined using the criteria set out in the International Labour Organisation Recommendation 198 (2006) rather than domestic law. However, these criteria are broadly similar to the approach taken in UK domestic law, focusing on the reality of how work is performed in practice rather than how it is described in any contractual agreement.

The Supreme Court held that the Central Arbitration Committee had conducted a rigorous review of the substance of the relationship between the riders and Deliveroo and had been entitled to conclude that the riders were not employees. A crucial factor was that the riders had a virtually unfettered right to appoint a substitute which was fundamentally inconsistent with an employment relationship. They also provided their own bikes and phones, had no specific working hours, could choose when to start and stop, and were not required to be available. The Supreme Court therefore concluded that the riders were not covered by the right to join and form a trade union under Article 11. In any event, the Supreme Court also confirmed that Article 11 does not go so far as to include any right to compulsory collective bargaining.

As well as providing helpful clarification of the scope of Article 11 of the ECHR, this case confirms the importance of the right of substitution in deciding employment status. Unlike other gig economy cases where substitution clauses have been found to be limited in practice, it was clear here that Deliveroo did not criticise or sanction its riders for using a substitute and did not object to riders using a substitution for profit. Although the IWGB failed in its attempt to obtain statutory recognition, in 2021 Deliveroo agreed a voluntary partnership agreement giving the GMB collective bargaining rights on pay and other issues, whilst still recognising that the riders are self-employed.