In November 2017, the CAC rejected an application from the Independent Workers Union of Great Britain (‘IWGB’) for collective bargaining rights in respect of Deliveroo riders. The CAC ruled that Deliveroo riders are not ‘workers’ within the meaning of the relevant definition (in section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992). An individual is a worker if he or she works, or normally works or seeks to work:
(a) under a contract of employment; or
(b) under any other contract whereby he or she undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his or hers.’
The case turned on the ‘limb (b)’ worker definition. Deliveroo was successful because the CAC found that Deliveroo riders had a genuine right to use a substitute to perform deliveries: a right that was inherently incompatible with an obligation to provide personal service. This decision meant that the IWGB could not proceed with its application for compulsory recognition in respect of a group of riders in Camden and Kentish Town.
IWGB sought permission to proceed with a judicial review of the CAC’s ruling on five grounds, all but one of which the HC rejected. It allowed the challenge to proceed ‘with some hesitation’ on a single ground, namely, that the CAC had not dealt properly with the IWGB’s secondary submission on the effect of collective bargaining rights in Article 11 of the European Convention on Human Rights (‘ECHR’). IWGB contended that the definition of worker in section 296 and the obligation of personal performance should be interpreted in a way that did not exclude riders from exercising their Article 11 rights.
What has the High Court decided?
Following a full hearing on this issue, the HC has now dismissed the IWGB’s challenge. The main points of its judgment were as follows:
Although permission for judicial review had been granted on very limited grounds, the judgment provides important guidance on what constitutes an ‘employment relationship’ in the context of European human rights law. It emphatically endorses Deliveroo’s position that riders are genuinely self-employed, and puts to rest any suggestion that, following the Pimlico Plumbers ruling of June 2018 (in which the Supreme Court ruled that an ostensibly self-employed plumber was a worker, based in part on the finding that his contract involved a personal service obligation), the correct test for determining whether someone is a worker is anything other than whether they have an obligation to work personally.
The HC made clear that cases such as these are fact specific, and there are not necessarily any wider implications for other ‘gig economy’ companies given the wide variety of different operating models. Nonetheless, this is an important development in the burgeoning debate over regulation in this area with the Government’s formal response to its consultations following the Taylor Review expected soon. Deliveroo remains the only ‘gig economy’ company to have been successful in any of the recent spate of employment status cases.
R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee and Roofoods Ltd t/a Deliveroo judgment available here.