The Independent Workers Union of Great Britain (IWGB), which represents a number of riders working for the app-based delivery service Deliveroo, has appealed to the Supreme Court seeking support for its claim that it should be entitled to be recognised by Deliveroo for the purposes of collective bargaining rights for its riders.
Under English law, the Trade Union and Labour Relations (Consolidation) Act 1992 allows for trade unions to seek mandatory recognition where they have support among the relevant workers. A worker for the purposes of the legislation is an employee, or a ‘person who works under a contract under which he or she undertakes to perform services personally’ for another party, where that party is not to be regarded as a client of the individual.
The Deliveroo contract states: “There may be circumstances in which you [the rider] wish to engage others to provide the services. Deliveroo is not prescriptive about this and therefore you have the right, without the need to obtain Deliveroo’s prior approval to arrange for another courier to provide the services in whole or part on your behalf.” A number of qualifications around the skills and training of the proposed substitute are then specified in the contract.
The union claim for recognition was initially heard by the Central Arbitration Committee (CAC), the body which adjudicates claims for compulsory union recognition. The CAC concluded that this clause gave riders the right to arrange for others to perform the work. Evidence was submitted that this was regularly operated in practice, with examples of drivers sub-contracting work for Deliveroo to others. The CAC therefore concluded that the riders did not fall within the category of workers for the purposes of the legislation, and therefore no right to compulsory recognition could arise.
IWGB challenged this conclusion with a claim for judicial review in the High Court and an appeal to the Court of Appeal, both unsuccessful. It has now appealed to the Supreme Court and the case is underway with judgement expected in a few months. The union argued that the Supreme Court Judgement in 2021 in the Uber v Aslam case requires that the legislation be interpreted broadly, so as to give effect to, rather than defeat workers’ claims. However, the Court of Appeal noted that UK legislation can exclude those who are not obliged to deliver a service or work personally.
The case is important for the union, as this is a newer trade union specifically targeting members in the gig economy, typically self-employed and vulnerable to the greater weight of negotiating power of the organisations with whom they contract. If the union were to win the right to compulsory recognition, scope for unions to seek collective bargaining rights would be considerably widened. The evidence of an unfettered right in the Deliveroo contract to appoint another rider to carry out the work is key.
If the union were successful in its claim, then ultimately it would be entitled to engage in collective bargaining on behalf of its members in relation to pay, hours and holiday entitlements. For gig workers this will likely give rise to a shift in balance of power between Deliveroo and its riders in relation to rates of pay, which the Union will inevitably seek to improve.
More broadly, if the claim succeeds, it would appear to open up scope for the union to claim that riders qualify for all rights given to workers by statute, and not just a right to union recognition. These rights include a right to statutory minimum wage for all hours worked, including time logged into the app awaiting jobs and time spent driving once a job has been accepted, a right to be accompanied at disciplinary hearings and a right to regular breaks during the working day.
Yvonne Gallagher is partner at Harbottle and Lewis