Decision upholds those of the CAC and Court of Appeal.
In recent years several cases on worker status have come to the end of the appeals process (see our articles 'Supreme Court confirms that Uber drivers are workers after denying appeal','Self-employed contractor found to be a worker can claim for all unpaid holiday pay on termination'and 'Addison Lee drivers confirmed as workers' – all available on our website).
Many of these cases have investigated the working relationship between organisations that use 'tech platforms' to engage others who provide services under them. On the face of it, these platforms would appear to operate on very similar lines, but the case law has shown that there are important differences between how these relationships are structured contractually, how they operatein practice and what this means in terms of the status of those providing services using the platform.
In particular, these cases have underlined the fundamental markers of a worker contractarethat the individual performs services personally and the arrangement is not one between a client or customer and a profession or business undertaking carried on by the individual. To date, these cases have largely focussed on the definition of worker in domestic legislation, for example in s.230 of the Employment Rights Act 1996.
The Supreme Court has now handed down its judgment in another case featuring a household-name app – this time, Deliveroo – and features consideration of what is a 'worker' for the purposes of Article 11 (Freedom of assembly and association) of the European Convention on Human Rights (ECHR).
Case details:Independent Workers Union of Great Britain v Central Arbitration Committee and another [2023]
In 2016 the IWU made a formal request to Deliveroo to recognise it for collective bargaining purposes in respect of riders in an area of London. Deliveroo rejected the request which led to the IWU making an application to the CAC which has powers to order an employer to recognise a union and to engage in collective bargaining if certain conditions are met.
Key to the matter before the CAC was whether the riders met the definition of 'worker' under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Deliveroo argued that the riders did not, and the CAC agreed. As an alternative argument, the IWU argued that denying the rights of the riders under TULRCA in this matter was contrary to Article 11 (1) ECHR because the riders were 'workers' for the purposes of that article.
Article 11 ECHR provides as follows:
- Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
- No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society [...]
The IWU argued that the riders were afforded the right to form a union without restriction in accordance with Article 11. As a result, the IWU brought a judicial review of the CAC's decision, and was only allowed to proceed on the Article 11 ECHR point. However, the High Court and Court of Appeal subsequently dismissed the IWU's case.
In regards to Article 11 ECHR, the Supreme Court considered the leading case of the European Court of Human Rights (CHR)known as 'The Good Shepherd' which considered the rights of orthodox priests and lay staff to form a trade union. In that case, the CHR concluded that the right to form a trade union could only arise where there was an employment relationship. Specifically, the CHR applied the criteria laid down in relevant international instruments including the International Labour Organization (ILO) Employment Relationship Recommendation, 2006 (No 198), which sets out guidance designed to help identify an employment relationship.
On review, the Supreme Court highlighted that the CAC noted the following key points in the Deliveroo-rider contract and relationship which were relevant to the ILO No 198 guidance:
- There was no direction by Deliveroo as to when the riders performed their work, how often they did it, for how long or where, provided it was within a certain geographical area
- The riders were expected to provideall of their own equipment from their own mobile phone and bike to suitable transport containers to perform jobs
- There was a practically unfettered right of substitution under the contract for the rider to allow another person to log in to the app using their access codes and perform deliveries
- Deliveroo did not police the use of substitutes and instead relied on its contractual position with the rider to seek recourse for poor or non-service
- Deliveroo did not prevent the riders from working for others and indeed did not prevent riders working for competitors
- The riders were not obliged to take jobs offered by Deliveroo when logged into the app and Deliveroo was not obliged to offer jobs to the riders
The Supreme Court noted that the focus for the CAC and lower courts had fallen on the right of substitution and agreed that this was especially crucial in determiningwhether there was an employment relationship for the purposes of Article 11 ECHR. In this case, the Supreme Court considered that the CAC was entitled on the facts to find that that there was no employment or worker relationship between Deliveroo and the riders for the reasons highlighted above.
Comment
It is important to note that the contract which came under scrutiny before the CAC and subsequently the High Court and appeal courts was a new version of the Deliveroo contract recently introduced to riders.
This new contract went to considerable lengths to decrease the control and oversight that Deliveroo had over the drivers, how they carried out the jobs and indeed the degree of freedom afforded to riders to substitute another rider in their place.
This case, as with those in the series concerning Uber, Addison Lee and Pimlico Plumbers, reaffirms that the precise ways in which contracts are constructed and, importantly, are performed in reality will affect the findings of a court should worker status ever be challenged. Each case will be judged on its facts.
This case also underlines that personal performance remains one of the most central aspects of an employment relationship and that a genuine right of substitution will be a significant factor in determining whether personal performance is present in the contract.
For details of a case in which an individual providing a personal service was found to be self-employed see the following article available on our website: Cricket club groundsman required to provide personal service was self-employed.
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