Supreme Court rules Deliveroo riders cannot appoint union to collectively bargain on their behalf

About this case:

• Citation:
  [2023] UKSC 43
• Judgment:
  External link
• Court:
  UK Supreme Court
• Judge:
  Lord Lloyd-Jones and Lady Rose

The Independent Workers Union of Great Britain, which included among its members a number of Deliveroo riders working in the Camden and Kentish Town area, sought to argue that the riders should be included within the scope of those on whom trade union rights were conferred under Article 11 of the ECHR. It had originally been decided by the Central Arbitration Committee that the relationship between riders and Deliveroo could not be an employment relationship.

The appeal was heard by Lord Lloyd-Jones, Lord Briggs, Lord Stephens, Lady Rose, and Lord Richards. Lord Hendy KC led the legal team for the appellant, and Christopher Jeans KC and others appeared for Deliveroo as the second respondent. An intervention was made by the Business Secretary, represented by Daniel Stilitz KC.

Substitution provision

On 7 November 2016, the appellant made a formal request to Deliveroo to recognise it for collective bargaining on behalf of riders in the CKT area. Deliveroo rejected this request, which prompted an application to the Central Arbitration Committee under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992.

Having considered the nature of the relationship between the riders and Deliveroo, the CAC determined that they were not “workers” within the meaning of section 296 of the 1992 Act, i.e., an individual who works under a contract of employment or any other contract whereby he undertakes to perform work for another party who is not a professional client of his. The CAC also rejected an alternative argument that a refusal to recognise the union based on that definition of “worker”, which ought to be read down to include the riders, would constitute a breach of Article 11 ECHR.

It was considered by the CAC that the presence of clause 8 of the standard Deliveroo contract, which allowed a rider to appoint a substitute to undertake deliveries on their behalf, meant that riders could not be said to undertake to perform personally any work or services for the purposes of the 1992 Act. While the practical use of such a provision was limited due to the high level of trust a rider required to have in their substitute, it was not a sham provision designed to avoid classification as a worker.

The High Court granted permission for a judicial review of the CAC’s decision solely on the ECHR argument, but both the High Court and the Court of Appeal rejected that argument. Before the Supreme Court counsel for the appellant argued that the key feature of the relationship was that the riders were in a subordinate position with unequal bargaining power as regards the setting of their occupational interests. People in such a position, he submitted, needed collective bargaining so as to be able to establish fair working conditions.

Totally inconsistent

In a joint opinion with which the other judges agreed, Lord Lloyd-Jones and Lady Rose said of Article 11: “The category of persons who benefit from the right to form and join a trade union under article 11 is a smaller sub-class of those who enjoy the right to freedom of peaceful assembly and to freedom of association with others conferred under that article. Although Lord Hendy initially argued on this appeal, as he had argued in the courts below, that the right to form and join a trade union was enjoyed by everyone, he did not pursue this submission and accepted that the rights on which the Union is seeking to rely are conferred on persons in the context of an employment relationship.”

Assessing the characteristics of the relationship in this case, they noted: “In our view, the analysis by the courts below and by the CAC 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 is not limited to other Deliveroo Riders.”

They went on to say: “As the CAC 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.”

Working for competitors

Turning to how the substitution provision worked in reality, the judges said: “Despite Deliveroo’s right of termination on one week’s notice for any reason, it did not terminate contracts for a Rider’s failure to accept a certain percentage of orders or failure to make themselves sufficiently available. It found that Deliveroo did not object to the practice of substitution by a Rider for profit or to Riders working simultaneously for competitors of Deliveroo. In all the circumstances, the CAC was entitled to conclude that the contractual provisions genuinely reflected the true relationship.”

They concluded: “Riders are 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. We conclude, therefore, that the Riders do not fall within the scope of an employment relationship within article 11. The rights conferred by that article to join and to be represented by a trade union are not conferred on the Riders.”

Finally, on whether there was an Article 11 right to compulsory collective bargaining, they added: “In our judgment there is, on the current state of the Strasbourg Court’s jurisprudence, no right conferred by article 11 to compulsory collective bargaining. Even if the Riders were article 11 workers, it would not be a breach of their article 11 trade union rights to define those who benefit from Schedule A1 in a way which excludes them.”

The appeal was therefore refused.