Independent Workers Union of Great Britain v Central Arbitration Committee and another

Trade union rights under article 11 of the European Convention on Human Rights arise only within an employment relationship. That autonomous Convention concept is determined by a multifactorial assessment of the relationship as it operates in practice, informed by the indicators in ILO Recommendation No 198.

A genuine and virtually unfettered right of substitution is fundamentally inconsistent with the personal service required for an employment relationship. Other relevant matters include control, working hours, continuity, remuneration, equipment, financial risk and freedom to work for competitors.

Article 11 protects voluntary collective bargaining but does not currently require a state to provide compulsory collective bargaining. A state which voluntarily establishes a statutory recognition scheme does not thereby incur an article 11 obligation to extend it to everyone within the article’s scope.

Deliveroo riders in a North London zone joined an independent trade union, which applied to the Central Arbitration Committee for statutory recognition under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992. The Committee found that the riders were not “workers” under section 296 because their genuine and virtually unrestricted right to appoint substitutes was inconsistent with an undertaking of personal service.

The union’s judicial review claim under article 11 of the European Convention on Human Rights was dismissed by the Administrative Court: [2018] EWHC 3342 (Admin). The Court of Appeal upheld that decision: [2021] EWCA Civ 952, [2022] ICR 84.

The Supreme Court considered whether the riders were within an employment relationship for article 11 purposes and, if so, whether article 11 required the United Kingdom to provide them with access to compulsory collective bargaining under Schedule A1.

1. Appeal dismissed unanimously. Lord Lloyd-Jones and Lady Rose delivered the joint judgment, with which Lord Briggs, Lord Stephens and Lord Richards agreed.

2. Article 11 trade union rights apply only in the context of an employment relationship. “Employment relationship” is an autonomous Convention concept. It does not depend on the domestic distinction between employees under section 296(1)(a) and other workers under section 296(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992. The applicable inquiry is multifactorial, focuses on the practical reality of the relationship and incorporates the indicators in ILO Recommendation No 198: paras 61–65.

3. The riders were not in an employment relationship. Their contractual power to appoint substitutes was genuine, virtually unfettered, available before or after accepting a delivery and not restricted to other Deliveroo riders. It was therefore fundamentally inconsistent with the obligation of personal service essential to an employment relationship: paras 69–70.

   That conclusion was reinforced by the riders’ freedom to refuse work, choose when and where to operate, work for competitors and provide their own equipment. They had no required availability, continuity, periodic remuneration, paid leave, reimbursement of travel expenses, guaranteed earnings or protection from financial risk: paras 71–73. Article 11 trade union rights were therefore not conferred on them.

4. Schedule A1 establishes compulsory collective bargaining, although it does not compel agreement about terms and conditions. Recognition and a bargaining method may be imposed; the prescribed method is enforceable by specific performance: paras 78–84.

5. Article 11 nevertheless imposes no positive obligation on a state to establish compulsory collective bargaining. Demir v Turkey protected collective bargaining voluntarily undertaken, while Unite the Union v United Kingdom confirmed that international and European norms had not developed sufficiently to require a mandatory statutory mechanism. Domestic decisions interpreting those authorities to permit such an obligation should not be followed: paras 128–134.

6. Nor does the creation of compulsory bargaining rights for some workers require their extension to all article 11 workers. That argument depended on discrimination principles, but no article 14 claim was advanced: paras 135–139. Issues concerning justification under article 11(2) and reading down section 296 under section 3 of the Human Rights Act 1998 did not arise: paras 140–142.

1. United Kingdom Supreme Court: Dismissed the union’s appeal from [2021] EWCA Civ 952.
2. Court of Appeal: Underhill, Coulson and Phillips LJJ upheld the dismissal of the judicial review claim: [2021] EWCA Civ 952, [2022] ICR 84.
3. Administrative Court: Supperstone J dismissed the substantive judicial review claim: [2018] EWHC 3342 (Admin).
4. Administrative Court: Simler J granted permission for judicial review only on the article 11 ground: [2018] EWHC 1939 (Admin).
5. Central Arbitration Committee: Refused the union’s recognition application because the riders were not workers within section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992.