The Supreme Court last month held that Deliveroo riders were not workers for their trade union (IWGB) to represent them in collective bargaining. It also held that Article 11 of the European Convention on Human Rights (ECHR) cannot be used to compel collective bargaining between an independent trade union and an employer.
In recent years, there have been important and far-reaching decisions by the court around disputed employment status. The topic is important, particularly for individuals in the so-called gig economy, where many thousands claim they have been denied basic employment rights such as the national minimum wage, protection under whistleblowing laws and the right to paid annual leave.
This case focuses on the relevant employment status that applies for collective bargaining rights, and the process through which a trade union can organise workers to represent them in negotiations with an employer to improve terms and conditions at work.
Trade unions and employers often agree ‘voluntary’ recognition for collective bargaining on behalf of workers, particularly where a large proportion of the workers are represented by a single union. Such agreements are mutually beneficial to the employer and the union. Where such ‘voluntary’ recognition is not possible, there is a statutory process where the union can apply to the Central Arbitration Committee (CAC) for recognition to carry out collective bargaining on pay, hours and holidays. Recognition, whether voluntary or statutory, opens the door to valuable trade union rights – such as information and consultation and protection for the union’s workplace representatives against detriment and dismissal.
For an independent trade union to be recognised for collective bargaining on behalf of workers under the statutory recognition process, it must be shown that each ‘worker’ within a relevant bargaining unit falls within the definition of section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992). The statutory recognition process involves a number of steps in the application process and, while the CAC has powers to give a union the right to collectively bargain on core topics (that is, pay, hours and holidays) with the employer, many exceptions must be addressed before such a decision could be made.
The Supreme Court’s judgment follows earlier decisions by the CAC, the High Court and Court of Appeal that all rejected claims by the IWGB that the Deliveroo riders in the Camden and Kentish Town food delivery zone are relevant workers for its statutory recognition application under TULRCA 1992. The riders were found to work under terms that state they are ‘independent contractors’ and may engage or employ a substitute without Deliveroo’s permission being needed. A crucial part of the CAC’s original findings was that the right to provide a substitute meant the riders could not be workers as they could not show any requirement for personal service. This closed the door to the IWGB’s application for statutory recognition. The IWGB’s unsuccessful appeals centred on whether this approach to employment status failed to reconcile the way in which Article 11 of the ECHR confers rights for collective bargaining to those in an ‘employment relationship’.
Article 11 of the ECHR is a qualified right. Article 11(1) states that ‘everyone’ enjoys the rights it confers. Article 11(2) sets out the way in which the rights are qualified. Convention rights are considered by the European Court of Human Rights (ECtHR), which previously held that criteria identified by the International Labour Organisation (ILO) should be followed to determine whether an employment relationship exists. Convention rights must be interpreted compatibly in domestic legislation due to the Human Rights Act 1998.
Before the Supreme Court, the IWGB argued this employment relationship encompassed every individual with an occupational interest to protect through collective bargaining, so it said the riders should fall within the scope of these Article 11 rights in order to be represented by the IWGB in collective bargaining with Deliveroo. The Supreme Court disagreed. It held that the ‘virtually unfettered’ power of substitution found on the facts determined by the CAC was enough to reject the appeal. It also held there were numerous features about how the riders were found to have worked which were inconsistent with ILO guidance.
While this decided the case, the Supreme Court went on to offer its view on whether Article 11 creates any right to compulsory collective bargaining in UK law. It concluded that, on the current state of ECtHR jurisprudence, there is no right to compulsory collective bargaining conferred by Article 11. There was no need for the Supreme Court to decide whether there was any justification for the exclusion of the Deliveroo riders from the statutory recognition process. Nor was there any need for the court to consider whether it would have been possible to read down the definition of section 296 of the TULRCA 1992 to include the Deliveroo riders.
The result is disappointing for trade unions that seek to force employers into collective bargaining where employment status is in dispute. The relevant substitution clause for the Deliveroo riders in this case was controversial, to say the least, because it opens up questions on how employers use contractual terms to protect their business interests.
It also contributes to the debate on how different rights must be viewed, when in light of different Supreme Court judgments, the answer depends on the claims being argued. This seems increasingly complicated when certainty is needed for vulnerable and precarious workers in our society.
Bruce Robin is legal officer and in-house solicitor at trade union Unison