Meghan Jenkins

Last Wednesday the English High Court rejected a judicial review challenge in the case of R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee.

For those unfamiliar with the case, it involved the Union (IWGB) fighting for the right to establish collective bargaining arrangements with app-based food delivery service Deliveroo on behalf of a group of riders. Last year the Central Arbitration Committee (CAC) refused their application for statutory recognition on the grounds that the riders were neither employees nor workers. Only ‘employees and workers’ can rely on the relevant statutory provisions to engage in collective bargaining.

The IWGB applied for judicial review of this decision under Article 11 of the European Convention on Human Rights, the freedom of assembly and association. They argued that the restriction of statutory collective bargaining rights to ‘workers’ breached Article 11. The CAC had ruled that Deliveroo riders were independent contractors rather than workers or employees.

The facts were central in establishing if they were workers or indeed self-employed. Deliveroo riders are engaged by way of an application, interview and a criminal records check. They supply their own bikes and smartphone and pay £150 for a Deliveroo branded equipment pack which is required to do the role.

Once on board, work is then organised through the app in which the rider can mark him or herself as available or unavailable for work. When a rider is marked as available he or she is free to choose which jobs to accept or reject, with no penalty for not accepting work. The agreement with Deliveroo is non-negotiable. There is no obligation on Deliveroo to provide work, and no obligation on the rider to accept any work offered. This sort of arrangement is typical of casual worker contracts, and in other similar cases this was not enough for companies to argue that the relationship was not that of an employer and employee or worker.

The key fact that helped Deliveroo successfully to argue their position was the provision in the contract to provide a substitute. The main requirement for an employee or worker type relationship is the requirement for a personal service. Deliveroo, by giving riders the unconditional right to provide a substitute, convinced the CAC that the personal service requirement was not made out in this instance.

The CAC were puzzled over why a rider would want to appoint a substitute when he or she had the complete freedom to accept or reject jobs they wanted and why Deliveroo were happy to allow untrained substitutes to carry out the work. They reasoned that this did not negate the fact that the right was a genuine one. Following this, the only argument that was allowed to proceed to the High Court was the Article 11 breach as outlined above.

The High Court dismissed the judicial review challenge from the IWGB. It did not share the IWGB’s view that collective bargaining rights should not depend on establishing worker status, and held that Article 11 was not engaged. None of the case law relied upon by the IWGB, in the High Court’s view, extended Article 11 rights out with that of an employment or worker relationship. As the riders were not employees or workers, they could not rely on the provisions of Article 11.

Interestingly, it was also held that even if Article 11 had been engaged, the exclusion of non-workers from the right to collective bargaining would be justified under Article 11(2). Article 11(2) is a caveat which states that no restrictions can be placed on the Article 11 right other than such as is necessary to protect the rights and freedoms of others. The Court reasoned that the restriction of Article 11 rights to workers and employees was justifiable, and necessary for preserving the freedom of business and contract. It was satisfied that a restriction of this sort was proportionate in achieving a fair balance between the competing interests of individuals and companies.

This case is in contrast to the latest ruling of the Court of Appeal this week in the case of Uber BV and others v Aslam and others. Uber failed again in their attempt to appeal the decision of the employment tribunal from 2016 which ruled that their drivers were “workers” rather than self-employed.

While it appears that employers who have genuinely self-employed people carrying out work for them are safe from collective bargaining challenges for now, the story is not yet over as the IWGB has announced their intention to appeal the ruling. Watch this space.

Meghan Jenkins is a solicitor at MacRoberts LLP