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Supreme Court rules Deliveroo riders not entitled to collective bargaining: how this judgment on a judicial review challenge crosses over into employment law.
The Supreme Court handed down the decision on 21 November 2023 for Independent Workers Union of Great Britain (Appellant) v Central Arbitration Committee and another (Respondents) [2023] UKSC 43. The judgment helpfully provides a clear introduction of the case which begins with:
“Deliveroo riders have become a familiar sight in our streets as they journey on their bikes or motor-scooters from restaurants to the homes and offices where people have ordered a take-away meal using the Deliveroo online app. A substantial number of those riders who work in a particular zone in London have joined the Appellant, the Independent Workers Union of Great Britain, which is an independent trade union (“the Union”). They want the Union to negotiate on their behalf with Deliveroo to improve the conditions under which they perform their services. Deliveroo has refused to enter into collective bargaining negotiations with the Union.”
The respondents in this matter were the Central Arbitration Committee (“the CAC”), which is the quasi-judicial body that has the power to order an employer to recognise a union and engage in collective bargaining if the conditions set out in that Schedule are met. However, they played no part in the proceedings, as the substantive respondent was Deliveroo as an Interested Party.
The Union had tried to represent a group of Deliveroo riders in order to negotiate pay and conditions with the company. The Union was first refused permission in 2017 on the basis that riders were not "workers" under UK labour law and it has since mounted a number of appeals.
The CAC rejected the Union’s alternative argument that a refusal to recognise the Union for collective bargaining based on the definition of “worker” in the domestic legislation would constitute a breach of article 11 of the European Convention on Human Rights (“the ECHR”) because they are workers for the purposes of that article.
The Union sought permission to challenge the CAC’s decision by way of judicial review on a number of grounds, but were only granted permission on the article 11 ground: freedom of assembly and association. The Union argued that it was an unlawful interference with riders' human rights to deny the Union’s application to be recognised by Deliveroo for collective bargaining.
The Supreme Court judgment carefully considers the case law of the Strasbourg Court and analogous case law from the domestic courts and the CJEU. This included the cases that many employment lawyers will be familiar with: Autoclenz Ltd v Belcher [2011] ICR 1157 and a ‘worker’s contract”; Pimlico Plumbers Ltd v Smith [2018] ICR 1511 which explored the significance of the power of substitution and Uber BV v Aslam [2021] ICR 657 where the Court concluded the drivers were workers because of Uber’s level of control over them.
However, the Court acknowledged at paragraph 56 of the judgment that the above decisions were made in different legal contexts from the article 11 issue which arises for consideration on this appeal. Nevertheless, such case law was instructive for exploring how determinative labels are, how a contract operates in practice and the existence of an employment relationship.
The Supreme Court in this appeal concluded that Deliveroo riders do not fall within the scope of an “employment relationship” within article 11 [paragraph 73]. In reaching this decision, the Court considered that the riders could appoint a substitute to undertake a delivery, can work for competitors, do not have to work specific hours and do not even carry out any deliveries at all. These features and others listed at paragraph 71 of the judgment, are inconsistent with any notion of an employment relationship. Therefore, the riders were not entitled to compulsory collective bargaining.
This is a positive judgment for Deliveroo with further confirmation that the rides are self-employed when considering human rights law. The decision means the company is protected from the need to collectively bargain with a union over issues such as the lack of a guaranteed minimum wage. This provides some certainty for companies like Deliveroo that have flexible operating models where individuals choose whether and when to work.
However, others are arguing that this may mark the next step in a process of regulatory divergence between the UK and the rest of Europe. For example, in Germany, riders for Gorillas, a grocery delivery platform, have a “works council” that offers them formal rights to representation. In Spain, the 2021 Riders’ Law introduced a presumption of employment for workers on digital delivery platforms and creates new rights for unions in the sector to access information about how work is organised by algorithms.[1]
It may also be said that riders for companies like Deliveroo now have a challenge in confronting wages cuts, level of work and any legal protections that may be undermined.
Read the judgment here: https://www.supremecourt.uk/cases/docs/uksc-2021-0155-judgment.pdf
[1] Cant, C, ‘Be warned: Deliveroo’s victory over its riders shows just how vulnerable British workers are’, The Guardian, <https://www.theguardian.com/commentisfree/2023/nov/23/deliveroo-victory-riders-british-workers-gig-economy-europe>
