The Supreme Court has upheld the earlier decision of the High Court and Court of Appeal in rejecting the claim by trade union the Independent Workers of Great Britain (IWGB), which was seeking to compel Deliveroo to recognise it for the purposes of collective bargaining on behalf of riders working in its delivery business.
The Supreme Court judgment would seem to bring an end to any argument that Deliveroo riders can be considered workers for purposes of trade union recognition, due to substitution clauses in rider contracts. The decision turns on the definition of worker for the purposes of the right to seek trade union recognition. A worker for these purposes is someone who undertakes to perform services personally for another party to a contract.
Deliveroo contracts permit riders to allow another individual to carry out delivery tasks in place of the named rider, and so Deliveroo has successfully argued that riders are not workers for the purposes of trade union recognition, or other rights, such as minimum wage, working hours and entitlement to holiday pay.
The Supreme Court has accepted that this is the reality and that the substitution right was, in fact, exercised by riders, meaning the substitution clause is genuine and cannot be viewed as a sham. Simply including a substitution clause, however, will not always preclude worker status. The courts are able to disregard terms that are not representative of the reality of the working relationship, and which they consider to be shams.
IWGB also sought to argue that UK legislation, in limiting trade union recognition rights to employees and workers, is in breach of the European Convention on Human Rights (ECHR), to which it is a signatory. The ECHR requires signatory countries to provide the right to conduct collective bargaining, but it allows countries to define the employment relationships to which the right will apply.
The UK has for this purpose used the worker definition, which requires personal obligation to deliver services. On the court’s analysis, this definition is permitted by the ECHR, so no breach by the UK has occurred.
The case makes clear the considerable flexibility national governments have when defining the scope of statutory protections, and the judgment upholds that the use of substitution clauses means that gig workers do not have the right to demand trade union recognition.
IWGB has now said it plans to consider its options under international law. This would mean arguing that the UK has not fulfilled its treaty obligations in a claim brought against the government in the ECHR.
While claims of this nature have succeeded and resulted in governments amending the law, the IWGB will likely face an uphill battle if insisting on widening the definition of those who qualify for employment rights.
Yvonne Gallagher is a partner at Harbottle and Lewis