In the recent case of R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee [2018] EWHC 3342, the High Court has agreed with the Central Arbitration Committee’s (“CAC”) finding that a group of Deliveroo riders are not workers for the purposes of collective recognition, because their contracts contain a genuine right of substitution.

Last year, the Independent Workers Union of Great Britain (“IWGB”) applied to the CAC for collective bargaining rights in respect of Deliveroo riders, who are engaged to deliver food to customers’ homes. The application failed because the riders were not deemed to be “workers” for the purposes of the relevant legislation.  An essential component for “worker” status is that the worker must be contracted to perform work personally. On these facts however, the riders could use a substitute to perform the services, meaning that there was no obligation of personal service.

Following this, IWGB sought permission to proceed with a judicial review of the CAC’s ruling. The basis of the challenge raised human rights arguments. Specifically, it argued that denying the riders to form and join trade unions breached their right to “freedom of assembly and association”.

The High Court rejected this argument, finding that the case law which IWGB sought to rely was limited to the context of an employment relationship and, fundamentally, the riders were not in an employment relationship with Deliveroo.

The Court also found that even if the riders’ rights to freedom of assembly and association had been engaged, the relevant right (under Article 11 European Convention on Human Rights) was a qualified right.  In other words, it can be restricted where necessary for the protection of the rights and freedoms of others. In this instance, it was considered appropriate to limit the right to freedom of assembly and association to preserve freedom of business and contract in a democratic society.

This case is of interest because it supports the CAC’s finding that Deliveroo drivers are self-employed, and reiterates the importance of personal service to the question of whether an individual is genuinely self- employed rather than a worker. It is worth noting that we may not have heard the last of this case yet, as IWGB has indicated that it intends to appeal the decision. 

If you would like more information about the issues raised in this article or any other aspect of employment law, please contact us at 02920 345511 or employment@berrysmith.com.