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09 January 2019
The High Court has dismissed a judicial review challenge to a finding by the Central Arbitration Committee (CAC) that Deliveroo riders are not workers. The High Court ruled that the riders are not in an employment relationship for the purposes of EU law.
In November 2017 the CAC rejected an application from the Independent Workers Union of Great Britain (IWGB) for collective bargaining rights in respect of Deliveroo riders. The CAC ruled that Deliveroo riders are not workers within the meaning of Section 296 of the Trade Union and Labour Relations (Consolidation) Act's definition (for further details please see "Deliveroo defends union recognition application by demonstrating riders are genuinely self-employed"). An individual is a 'worker' if they work, normally work or seek to work:
The case turned on the second worker definition. Deliveroo was successful because the CAC found that Deliveroo riders had a genuine right to use a substitute to perform deliveries – a right which was inherently incompatible with an obligation to provide personal service. This decision meant that the IWGB could not proceed with its application for compulsory recognition in respect of a group of riders in Camden and Kentish Town.
The IWGB sought permission to proceed with a judicial review of the CAC's ruling on five grounds, all but one of which the High Court rejected. It allowed the challenge to proceed with some hesitation on a single ground – namely, that the CAC had not properly dealt with the IWGB's secondary submission on the effect of collective bargaining rights in Article 11 of the European Convention on Human Rights (for further details please see "High Court dismisses Pimlico Plumbers challenge to Deliveroo contract"). The IWGB contended that the definition of worker in Section 296 and the obligation of personal performance should be interpreted in a way that does not exclude riders from exercising their Article 11 rights.
Following a full hearing, the High Court dismissed the IWGB's challenge. The main points of its judgment were as follows:
Although permission for judicial review had been granted on limited grounds, the judgment provides important guidance on what constitutes an 'employment relationship' in the context of EU human rights law. It emphatically endorses Deliveroo's position that riders are genuinely self-employed and puts to rest any suggestion that, following the Pimlico Plumbers ruling, the correct test for determining whether someone is a worker is anything other than whether they have an obligation to work personally.
The High Court clarified that cases such as these are fact specific, and there are not necessarily any wider implications for other gig economy companies given the wide variety of different operating models. Nonetheless, this is an important development in the burgeoning debate over regulation in this area with the government's formal response to its consultations following the Taylor Review expected soon (for further details please see "Government response to Taylor review – a damp squib?"). Deliveroo remains the only gig economy company to have been successful in any of the recent spate of employment status cases.(1)
For further information on this topic please contact Colin Leckey at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee and Roofoods Ltd t/a Deliveroo – judgment available here.
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