Deliveroo riders in one London delivery zone asked for their union to be recognised for collective bargaining. The riders could send someone else to do a delivery, even after accepting it. The Supreme Court examined whether that freedom was genuine in practice and what it meant for the trade-union rights protected by Article 11.
A substantial number of Deliveroo riders working in the Camden and Kentish Town zone of North London joined the Independent Workers Union of Great Britain. On 7 November 2016 the Union asked Deliveroo to recognise it for collective bargaining in respect of those riders. Deliveroo refused. The Union then applied to the Central Arbitration Committee under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992. That Schedule provides a procedure by which a union may seek recognition and, if the statutory conditions are met, a method of collective bargaining over pay, hours and holidays may ultimately be imposed. One condition is that the people concerned are “workers” within section 296 of the Act.
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The riders’ contracts and the Committee’s findings
The Committee considered the position under new supplier agreements introduced in May 2017. Those terms were set by Deliveroo. They stated that a rider was not obliged to do any work and Deliveroo was not obliged to offer any; that a rider could work for competitors; and that a rider could accept or reject offers and decide when and where to log in. Payment was a fee for each completed delivery. Equipment, including the bicycle or scooter and phone, was the rider’s own.
Most importantly, clause 8 gave the rider a right, without Deliveroo’s prior approval, to arrange for another courier to provide the services in whole or in part. The rider remained responsible for the substitute, including payment of the substitute, and Deliveroo continued to pay the rider. The Committee found that this right was genuine and operated in practice, both before and after a job was accepted. Deliveroo did not police substitution, did not object to substitution for profit, and did not terminate fee-per-delivery contracts merely because a rider was unavailable or rejected work. Substitution was rare, largely because a rider who did not want work need not log on or accept an offer, but a few riders did use substitutes. Riders could also work for other delivery companies.
The Central Arbitration Committee found that the riders had not undertaken to perform work personally. It refused recognition. Permission for judicial review was confined to the European Convention argument. The Supreme Court therefore examined employment relationships for Article 11 purposes rather than deciding the status of delivery riders for all employment laws.
Whether the riders were within article 11
Article 11 protects freedom of assembly and association, including the right to form and join trade unions for the protection of one’s interests. The Court held that the specific trade-union rights are not conferred on everyone. Drawing on the Grand Chamber decision in Sindicatul “Păstorul cel Bun” v Romania, it held that those rights arise only in the context of an employment relationship. That concept is autonomous and does not depend on domestic definitions of “employee” or “worker”. It is wider than employment under a contract of employment, but it does not automatically cover everyone who falls within the broader domestic limb of personal service.
The existence of the relationship is decided by a multifactorial test focused on practical reality. The Court adopted the indicators in ILO Employment Relationship Recommendation No 198, which the Strasbourg Court had applied, including whether the work must be carried out personally, whether it is performed under another’s instructions and control, and how remuneration and tools are arranged. Form and labels are not decisive, and a substitution clause that is a sham can be disregarded. Unequal bargaining power alone does not bring a person within article 11 trade-union rights.
Applying that test, the Court agreed with the Committee and the courts below that the substitution power was decisive. It was virtually unfettered, was not limited to other Deliveroo riders, and applied before and after acceptance of a job. That was inconsistent with the obligation of personal service which is essential to an employment relationship under article 11. The Committee had scrutinised whether the clause reflected reality, particularly because the new contract was introduced shortly before the hearing, and was entitled to find that it did. Other features reinforced the conclusion: riders need not carry out any deliveries, chose if and when to work, used their own equipment, were paid only for deliveries they chose to make, had no holiday entitlement or guaranteed earnings, and could work for competitors. The riders therefore fell outside article 11 trade-union rights.
Compulsory collective bargaining
That conclusion was enough to dismiss the appeal. The Court nevertheless addressed the second issue because it had been fully argued. Schedule A1 can impose recognition and a legally enforceable method of bargaining, with specific performance as the remedy, although it cannot itself fix pay, hours or holidays. The Court treated that process as compulsory collective bargaining. The question was whether article 11 requires the United Kingdom to confer such a right.
The Strasbourg authorities protect workers’ ability to bargain collectively and can require the state to protect voluntary bargaining. In Demir, for example, the state had annulled an agreement already reached. Here the union sought a legal mechanism requiring an unwilling company to bargain. The Court found no European authority requiring states to provide that mechanism.
The United Kingdom had chosen to provide compulsory recognition for certain workers. That choice did not itself create a Convention duty to extend the scheme to every group. The union had to establish a breach of Article 11 on its own terms.
Accordingly, even if the riders had been article 11 workers, defining those who benefit from Schedule A1 so as to exclude them would not breach article 11. The Court did not need to decide whether any such exclusion would be justified under article 11(2), or whether section 296 could be read down under the Human Rights Act 1998 so as to include the riders.
Verdict: The Supreme Court dismissed the appeal. It held that the riders were not in an employment relationship and therefore did not enjoy article 11 trade-union rights, and that article 11 does not in any event confer a right to compulsory collective bargaining. It left undecided whether exclusion from Schedule A1 would be justified under article 11(2) and whether section 296 could be read down.
