The result of this is that the application for trade union recognition from the Independent Workers Union of Great Britain (IWGB) could not proceed (worker status being required for recognition).
The facts of this case were based upon the employment status requirements for union recognition, but are useful in respect of other employment status cases.
The IWGB not only appealed the definition of a ‘worker’ under TULRCA, but also that by failing to recognise the riders’ rights to form and join a trade union, there was an interference with Article 11 of the European Convention on Human Rights (the right to form and join trade unions) which only applies to ‘workers’.
Applying the current tests for determining employment status, the Supreme Court held that the riders were not ‘workers’. One of the key considerations was that they did not need to provide personal service and could substitute their work. This was found to be a broad right, not policed by Deliveroo and in itself was enough for the Supreme Court to find that there was no requirement for personal service and therefore the riders were not workers. However, the Supreme Court also noted that the riders could also work for competitors, choose their working hours, and decide if they wanted to accept a delivery. The riders’ equipment was provided at their own expense and they had no protection from financial risk. The riders’ relationship with Deliveroo was therefore inconsistent with an employment relationship and they were found to be self-employed.
The significance of the Supreme Court dismissing this appeal is that it has reaffirmed that Deliveroo riders do not have the right or protection to form or join a trade union as they are not ‘workers’ for the purposes of Article 11.
The decision has also upheld the current mechanisms for determining employment status as to whether an individual is deemed to be an employee, a worker, or self-employed, and settled some uncertainty as to whether the right of substitution could be the ‘sole test’ for determining whether there is an obligation of personal performance for the purpose of deciding employment status.
The case also confirms that employers do not have to accept recognition of workers preferred trade unions based on the argument that it is an Article 11 right that workers can choose their preferred trade union, which is welcome clarification.
Employment status remains a knotty area and it is therefore important that businesses carefully review the employment relationships they have with those carrying out work for them and how the arrangement works in practice to avoid a finding inconsistent with the company’s intention. If you would like assistance with this, please contact us by email or on 03333 231 580.