Worklife 2.0: The Effective Collective – The importance of an unfettered right to substitution – Supreme Court: “Deliveroo riders are not employees”

In a judgment handed down on 21 November 2023, the UK Supreme Court has ruled that Deliveroo riders are not in an “employment relationship” with Deliveroo and are therefore not entitled to collective bargaining under human rights legislation. 

Setting the scene: application for recognition

The Independent Workers Union of Great Britain (IWGB), which predominantly represents workers in the gig economy, applied unsuccessfully to the Central Arbitration Committee (the CAC) for compulsory recognition in November 2017. The application was to ensure recognition of the IWGB for collective bargaining purposes, on behalf of a north London-based group of Deliveroo riders. 

The CAC found that Deliveroo riders were not “workers” for the purposes of applicable trade union legislation; without worker status, the application for recognition could not proceed. The CAC specifically noted that the “almost unfettered right” of substitution afforded to the Deliveroo riders was an “insuperable difficulty” in IWGB’s application. 

The judicial review process 

IWGB was awarded permission to proceed with a judicial review of the decision on only one of the five grounds it put forward. The High Court allowed the appeal to proceed “with some hesitation” on the ground that the CAC had not fully dealt with IWGB’s contention that Deliveroo riders should still be able to exercise collective bargaining rights under Article 11 of the European Convention on Human Rights (the ECHR). The judicial review was then rejected by both the High Court and the Court of Appeal, and the case was taken by IWGB to the Supreme Court. 

The Supreme Court’s judgment 

The Supreme Court affirmed the CAC’s refusal of IWGB’s application in November 2017. The unanimous judgment focussed on whether the riders fell within the scope of Article 11. This turned on whether the riders are in an “employment relationship” with Deliveroo. The Supreme Court concluded that they are not. It agreed with the previous reasoning from the CAC and lower courts, that the key question is whether the ability to riders to substitute is genuine or not and found that it is for Deliveroo riders. Substitution has long been recognised as critical to any determination of employment or worker status – the more unfettered the right of substitution (both contractually and in practice), the harder it is to establish employment. 

The Supreme Court also noted that, regardless of this, factors set out by the International Labour Organisation (in its Employment Relationship Recommendation 2006, No. 198) should be considered and may be cited in future similar litigation. Factors include: (i) riders not having to be available; (ii) remuneration depending on riders choosing to make deliveries and the number of deliveries they choose to make; and (iii) the fact that riders do not have to carry out any deliveries at all. 

The Supreme Court went on to consider whether Article 11 confers any right to compulsory collective bargaining at all (i.e. whether it requires the UK to legislate to give workers under Article 11 the right to require their employer to recognise and negotiate with a union). This was not relevant to the case given the decision that riders were not covered by Article 11, but this has been a rather unclear area of law and the judgment is useful in helping to clarify certain points. Ultimately the court’s conclusion was that Article 11 does not confer a right to compulsory collective bargaining and that current UK legislation is not inconsistent with those Article 11 rights. 

What next?

The Supreme Court judgment marks the final case in seven years of litigation on the question of union recognition for Deliveroo riders – although the union has referred to exploring its further options under international law. 

As for the wider ramifications of this case, in one sense this is a narrow case. It concerned a specific request for recognition and the determination of employment status was fact-specific, as it always is. However, as we have identified in our ‘Effective collective’ blog series (see here) there is increased focus from the workforce on collective rights and this trend is likely to continue. This case is helpful in demonstrating the factors that should be taken into account when determining whether the human right to collectively bargain is engaged or not – and it also represents further case law on employment status in the gig economy (although the case does not fundamentally change the existing law as established in cases like Autoclenz and Pimlico Plumbers (see our blog on Pimlico Plumbers here)).