On 24th June 2021, the Court of Appeal handed down judgment in The Independent Workers Union of Great Britain v The Central Arbitration Committee, yet another significant case considering the ‘gig’ economy.
The Independent Workers Union of Great Britain (‘IWGB’) applied under the compulsory recognition procedure in Schedule A1 of the Trade Union & Labour Relations (Consolidation) Act 1992 to the Central Arbitration Committee (‘CAC’) to be recognised by Deliveroo for collective bargaining on behalf of a group of couriers (aka ‘riders’) in Camden and Kentish town. In order for this to happen, the CAC needed to be satisfied the riders were at least ‘workers’ as defined by the 1992 Act rather than merely self-employed; in a substantially similar but not identical way to that in s.230(3) Employment Rights Act 1996.
The riders operated under written Supplier Agreements. They could download an app which allowed them to indicate when they were available to be offered work in a particular zone in which they were registered. There was no obligation for a rider to be available at a certain time nor for any duration. They would be offered a job on the basis of their proximity to the point of collection and had three minutes to accept or decline the job offer. If they accepted they would collect and deliver the food, being paid a fee per delivery.
The CAC rejected the application because the Supplier Agreements provided that they did not have to personally perform the work but could instead send a substitute without Deliveroo’s prior approval. Importantly, and distinguishing the case from others of a similar nature, the CAC found some evidence of genuine use of the clause by riders to appoint substitutes.
The IWGB sought permission to challenge the decision of the CAC by way of judicial review. The High Court granted permission on a single ground (the impact on Freedom of Assembly & Association under Art.11 ECHR) but at full hearing of the review in December 2018 the proceedings were dismissed by Supperstone J. who found that Article 11 was not engaged on the facts of the case.
The IWGB appealed to the Court of Appeal arguing paragraph 1 of Article 11 does not restrict the right to a particular class of person and could certainly apply beyond the employment relationship.
Underhill, Coulson and Phillips LJJ whilst finding Supperstone J’s analysis did not fully reflect the case law, the IWGB’s submission seemed to ignore the distinction between the general right of freedom of association and the special aspect of trade union freedom.
Though if the right to substitute ‘disguised’ the reality of the relationship, was notional or fictional, then that right would carry no weight (see Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51), the CAC had found an almost entirely unfettered right to substitute with evidence of its genuine application. The riders fell outside the scope of Art.11 and the CAC’s decision was one they were entitled to reach.
