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

The Supreme Court dismissed the appeal. The court held that the class of persons entitled to the trade-union freedoms of Article 11 ECHR (including the right to form and join a trade union and the right to collective bargaining recognised in Strasbourg jurisprudence) is confined to those who fall within an autonomous concept of an employment relationship. Applying that multifactorial test (informed by ILO Recommendation No. 198 and Strasbourg authority such as The Good Shepherd and Demir), the Deliveroo riders in the Camden and Kentish Town zone did not fall within Article 11 trade-union protection. Central to that conclusion was the genuinely unfettered contractual and practical right of substitution which meant there was no obligation of personal performance, so the riders were not "workers" for Article 11 purposes nor within section 296(1)(b) TULRCA. The court also held that Article 11 does not, in the current state of Strasbourg case-law, impose on the State a right to require compulsory collective bargaining in the sense of imposing substantive terms on an employer; Schedule A1 TULRCA is a form of compulsory bargaining procedure but there is no Convention right to compel bargaining in all cases.

Background and parties. Deliveroo riders in a London zone had joined the Independent Workers Union of Great Britain seeking statutory recognition under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Deliveroo declined recognition and the Union applied to the Central Arbitration Committee (CAC). The CAC found the riders were not "workers" within section 296(1)(b) TULRCA and rejected the Union's alternate Article 11 ECHR submission. The Union lost in the High Court (Supperstone J) and the Court of Appeal ([2021] EWCA Civ 952). The Union appealed to the Supreme Court, with the Secretary of State intervening.

Nature of the claim / relief sought. The Union sought to challenge the CAC decision and to rely on Article 11 ECHR and section 3 of the Human Rights Act 1998 to read down section 296 so that Deliveroo riders would be included. The Union argued that Article 11 trade-union rights (including a right to collective bargaining) extended to persons with the occupational interest at stake and that their exclusion from Schedule A1 breached the Convention.

Legal issues framed. The court identified four issues: (1) whether the riders fall within Article 11 trade-union protection; (2) if so, whether Article 11 includes a right to require the State to legislate to compel an employer to bargain with a union (in principle or where the State already provides such a mechanism for some workers); (3) if such a right exists, whether exclusion of the riders from Schedule A1 is justified under Article 11(2); and (4) if there is a violation, whether section 296 could be read down under HRA s.3.

Court’s reasoning. The court applied Strasbourg authority, notably The Good Shepherd and Demir, and ILO Recommendation No. 198. It adopted a multifactorial, reality-focused test for whether an employment relationship exists for Article 11 purposes. The CAC’s factual findings about the contractual terms and how they operated in practice — in particular the "virtually unfettered and genuine" substitution right, the lack of required hours or availability, fee-per-delivery pay, lack of employment benefits, and riders' freedom to work for competitors — were decisive. Those features, taken together, showed no obligation of personal performance and so the riders were not Article 11 workers. The court also analysed Strasbourg case-law concerning collective bargaining (Wilson, Demir, Unite the Union) and concluded that, while Strasbourg recognises collective bargaining as an important element of Article 11, it does not currently impose a general Convention right to compulsory collective bargaining obliging states to provide statutory mechanisms in all circumstances. Consequently the exclusion of the riders from Schedule A1 was not a breach of Article 11 and it was unnecessary to decide justification under Article 11(2) or whether section 296 could be read down.

Appeal dismissed. The Supreme Court held that the Deliveroo riders were not within the class of persons who enjoy Article 11 trade-union rights because the contractual right of substitution and the practical realities of the relationship meant there was no obligation of personal performance and thus no employment relationship for Article 11 purposes. The court further held that, on current Strasbourg jurisprudence, Article 11 does not impose a general positive obligation to provide a right to compulsory collective bargaining that would require the UK to confer Schedule A1 rights on all Article 11 workers.

The CAC decided against the Union (decision dated 14 November 2017). Permission to seek judicial review was limited to the Article 11 point (Simler J; see [2018] EWHC 1939 (Admin)). Supperstone J dismissed the Union’s judicial review claim ([2018] EWHC 3342 (Admin)). The Court of Appeal dismissed the appeal ([2021] EWCA Civ 952, [2022] ICR 84). The Supreme Court dismissed the appeal ([2023] UKSC 43).