Law at Work - July 2021 – 4 / 6 观点
In 2017, the Central Arbitration Committee (the body which decides on the validity of a trade union's application for statutory recognition in respect of a particular bargaining unit in a workplace), refused the application of the Independent Workers of Great Britain (IWGB) to be recognised in respect of a group of Deliveroo riders. This was on the basis that those individuals are not workers, as required by the relevant legislation (Trade Union Labour Relations (Consolidation) Act 1992) (TULRCA). The TULRCA definition of workers is slightly different to the Employment Rights Act 1996 (ERA1996) definition of workers (which is what the Uber case was all about).
The CAC decision hinged on the fact that the riders could not be workers because they did not have an obligation to perform work personally. This was evident because they did have a genuine right to provide a substitute (the substitution issue did not even feature in Uber). This was fatal to the union's claim that the riders were workers. The CAC found that the riders were not workers within the meaning of TULRCA (or, in its opinion, ERA 1996).
A Judicial Review challenge was brought by the union in respect of the CAC refusal on the basis that this did not give effect to article 11 of the European Convention of Human Rights – which gives everyone the right to collectively bargain (regardless of status). However, article 11 is qualified by reference to the rights and freedoms of others in a democratic society (article 11(2)). Deliveroo argued that this should mean, in this context, the rights of an employer to protect its commercial interests and effectively limit who can collectively bargain.
The High Court had to decide whether article 11 was engaged (effectively was it relevant /had there been a potential breach)? The High Court decided that article 11 was not engaged and dealt with other article 11 issues briefly. It pointed out that article 11 is qualified by reference to the rights and freedoms of others, implicitly accepting the employer's argument that it has the right to pursue its freedom to do business on the terms it chooses to offer, including the freedom from the imposition of bargaining arrangements.
The IWGB appealed to the Court of Appeal against the CAC's decision.
Agreeing with the High Court, the Court of Appeal held in Independent Workers Union of Great Britain v Central Arbitration Committee and another that article 11 was not engaged. It also held that CAC's finding of fact, that there was a genuine substitution clause, could not be interfered with and the CAC was entitled to come to this conclusion. It refused to 'go down the road' of weighing up the various factors pointing towards and away from self-employment, in light of the Supreme Court's decision in Uber, noting that this was not the subject of the appeal. It agreed with the High Court that personal service is a pre-requisite for worker status and there was no read to read article 11 so widely that it applied to 'everyone' regardless of status.
The case has attracted much press attention, not so much for the article 11 arguments about freedom of association, but because it puts the business model of Deliveroo under the spotlight and in contrast to the Uber business model. Interested parties will want to know what Deliveroo did right to avoid the worker status label, where Uber did not succeed with its argument that drivers are self-employed.
However, it needs to be remembered that the cases and circumstances are quite different. Uber tightly controlled its business, which was regulated by the licensing regime, whereas Deliveroo gave riders genuine freedom about when and whether they worked, how quickly they turned around jobs and whether they could send substitutes. They were free to work for others, including competitors.
The straight comparison between 'factors' in the Uber case is not entirely appropriate because the fact-finding body (the CAC) looked at the question of substitution in isolation rather than making a broad inquiry into the business model. It is possible that a 'list of factors' approach might have yielded a different outcome. However, if a generalisation can be deduced from the case, it is that the absence of personal service is likely to be fatal to a worker status claim.