The Independent Workers Union of Great Britain, R (On the Application Of) v Central Arbitration Committee : Re: Deliveroo

Article 11 collective-bargaining rights do not extend to persons who are not in an employment relationship with the putative employer. For the purposes of limb (b) of section 296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, the decisive question is whether the contract contains an obligation of personal performance. A genuine and unfettered right to appoint a substitute defeats that obligation, even if substitution is rarely used in practice. The statutory definition cannot be read down under section 3 of the Human Rights Act 1998 by relying on the usual pattern of work or a dominant-feature analysis. Any interference with Article 11 rights would in any event be a proportionate restriction rationally connected with preserving freedom of business and contract.

The Union applied to the Central Arbitration Committee for recognition for collective bargaining in respect of Deliveroo delivery riders in the Camden and Kentish Town zone. The CAC held that the riders were not workers under section 296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, because their contract gave them a genuine right to appoint substitutes.

Permission for judicial review was granted on the issue whether Article 11 of the Convention required section 296(1) to be interpreted so as to include the riders. The issues were whether Article 11 was engaged, whether any interference was justified, whether the provision should be read down under section 3 of the Human Rights Act 1998, and whether the CAC had adequately addressed the Union’s Article 11 submissions.

1. Claim dismissed. The CAC had lawfully concluded that the riders were not workers under limb (b) of section 296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992.
2. Article 11 was not engaged on the facts found. The riders were not in an employment relationship with Deliveroo. The Strasbourg authorities treated an employment relationship as the relevant basis for the Article 11 right to form and join a trade union for the protection of one’s interests. The contractual right to provide delivery services through another person was genuine, unfettered and operated in practice.
3. The statutory personal-service requirement was decisive. The question was whether the contract under which the riders worked required personal performance. It was irrelevant that riders commonly performed deliveries personally, or that substitution was unusual. A generalised right of substitution defeated the obligation of personal service.
4. Assuming Article 11 was engaged, any interference was justified. The restriction was prescribed by law, rationally connected with preserving freedom of business and contract, and proportionate. It affected only compulsory recognition under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992; it did not prevent union membership or voluntary collective arrangements.
5. Section 3 of the Human Rights Act 1998 did not permit the proposed readings. Section 296(1) had to be read as a whole, and its underlying thrust was the requirement of contractual personal performance. None of the proposed constructions was compatible with that feature. The CAC had also given sufficient reasons for rejecting the Article 11 argument.

The judgment itself describes the permission history:

• High Court (Administrative Court): Butcher J refused permission on all grounds on the papers. On renewal, Simler J granted permission on the Article 11 ground alone and refused permission on the remaining grounds. The claim for judicial review was then dismissed by Supperstone J.