Posted Monday 28th June 2021
Following a lengthy battle which has most recently found itself before the Court of Appeal, Deliveroo riders have been deemed self-employed and therefore do not qualify under Article 11 of the European Convention on Human Rights. This is the fourth court judgement on the matter, following previous challenges before the Central Arbitration Committee and the High Court.
Article 11 holds that “everyone has the right to freedom of peaceful assembly and to freedom of association with others” and, if the challenge had been successful, would have provided Deliveroo riders with the right to unionise.
The previous High Court dismissal of The Independent Workers Union of Great Britain’s (“IWGB”) judicial review challenge was decided on the basis that the riders did not have an employment relationship with Deliveroo, therefore denying IWGB’s argument that trade union rights under Article 11 should not depend on a worker status determination. The High Court additionally stated that even if they had found in IWGB’s favour, it is probable that they would have been caught by the broad range of exclusions permitted under Article 11(2).
The Court of Appeal’s further dismissal stated that the High Court were entitled to come to their conclusion. Referencing ILO Recommendation 198 and the surrounding case law, the Court found that the relationship between Deliveroo and its riders did not fulfil the characteristics of employment – specifically, the existence of the right to substitute negated any such argument. The point of whether riders actively used this right on a regular basis, or at all, was deemed irrelevant provided that the option to do so was genuine.
This decision may come as a surprise to many following the Supreme Court’s recent finding that Uber drivers are workers. It is important to note that the two cases revolved around different areas of employment law – the Court of Appeal opted against discussing the Uber case in detail, given it did not at any point involve an Article 11 challenge. As Article 11 is a product of the European Convention of Human Rights, the case law and reference points also differ slightly from domestic law (although it has been acknowledged that these are largely identical in determining employment status). The two cases together do however indicate the importance of paying attention to the detail of your service contracts (including how they operate in practice) and how seemingly minor characteristics can be key in establishing whether an employment relationship exists.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
We continue to receive a large volume of questions from our clients about the impact of the pandemic on their legal rights and obligations.
