Independent Workers Union of Great Britain v Central Arbitration Committee
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Simler DBE,Mrs Justice Simler |
| Judgment Date | 15 June 2018 |
| Neutral Citation | [2018] EWHC 1939 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/810/2018 |
| Date | 15 June 2018 |
[2018] EWHC 1939 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Simler DBE
CO/810/2018
and
APPEARANCES
Mr J Hendy QC and Ms M Stanley (instructed by Harrison Grant LLP) appeared on behalf of the Claimant.
THE DEFENDANT did not appear and was not represented.
Mr C Jeans QC (instructed by Lewis Silkin LLP) appeared on behalf of the Interested Party.
This is a renewed application for permission to apply for judicial review. The application was listed for a 30-minute hearing in the ordinary way. That time estimate was patently inadequate. It was inadequate to accommodate the submissions the claimant wished to make and became all the more inadequate when it was clear that the interested party wished to be heard as well. It is regrettable that the parties did nothing to address that problem and that neither side applied for a longer hearing. Nonetheless, I heard the application in court 37 on Tuesday but was unable to give judgment immediately because of other urgent applications awaiting hearing that day.
Today is the first opportunity I have had to accommodate giving this judgment whilst also affording the parties and the press some notice of it.
Following the hearing on Tuesday and the Supreme Court's judgment in Pimlico Plumbers Ltd v Smith [2018] UKSC 29, the parties made written submissions. I have considered those submissions in reaching my conclusions.
The claimant, the Independent Workers Union of Great Britain, is a trade union wishing to be recognised by Deliveroo under the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) for collective bargaining purposes in respect of a group of delivery riders. Unions can seek recognition from employers, pursuant to s.70A and Sch.1 of the 1992 Act in respect of individuals who are workers, as defined by s.196(1) of the 1992 Act.
Following a hearing by the Central Arbitration Committee (“the CAC”) by a decision dated 14 November 2017, and subsequently revised on 20 November 2017, the CAC found that the riders in the proposed bargaining unit were not workers. As the grounds for judicial review state at paragraph7:
“The basis for this conclusion was the finding by the CAC that the substitution clause at cl.8 of the new contract of 11 May 2017 was genuine and operated in practice so that in consequence the riders were not obliged to provide personal service, a necessary ingredient of the definition of worker in s.296. Thus they did not qualify as limb (b) workers and were not eligible to be the subject of a recognition claim.”
The claimant seeks to challenge that conclusion by this application for judicial review. Permission was refused by Butcher J on the papers. He concluded that the attack on the CAC's decision is essentially a challenge to its findings of fact that the substitution right was genuine and operated in practice and that determination of fact is not susceptible to judicial review.
The critical statutory provision in issue is s.296(1) of the 1992 Act. This sets out the definition of “worker” as follows:
“(1) In this Act worker means an individual who works, or normally works or seeks to work—
(a) under a contract of employment, or
(b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his, or …”
The claimant sought to rely on the definition of worker in s.296(1)(b); referred to as the limb (b) definition. That definition is similar to the definitions of “worker” in other employment rights-based legislation including the Employment Rights Act 1996, s.230(3)(b), and s.83(2) of the Equality Act 2010; but it is not identical to those definitions. The CAC did not regard the difference as material and, in line with the well-established approach to limb (b) worker status cases, proceeded on the footing that to fall within limb (b) an individual must work under a contract whereby he or she undertakes personally to perform work or services for another party so that the critical issue for the CAC was whether under the new contract riders undertook to perform personally. That, as the CAC held, broke down into two sub-issues: first, whether there was an obligation to perform work and, secondly, the question of personal service.
It was common ground before the CAC (and before me) that whether a person undertakes personally to perform work or services depends entirely on the contract between the parties and that the essential question in each case is: what were the terms (whether in writing, oral or both) of the agreement? Further, bearing in mind that the approach to the construction of agreements in the work context should recognise that the parties to such agreements do not have equal bargaining power, the task is to find the true agreement or the actual legal obligations of the parties as a matter of substance and not merely as a matter of form or labelling. Consequently, in order to carry out the exercise of discovering the actual legal obligations of the parties in terms of personal service, the fact-finding tribunal examines all relevant evidence, including the written agreement and the way in which the parties conducted themselves in practice.
The CAC heard this case over four days. At paragraphs 29 and 30 it identified the witnesses of fact heard on both sides. These were numerous. At paragraph 51 onwards it dealt with the written agreements between the parties and in particular the new contracts that had recently been introduced. The parties agreed that the CAC should consider the question of worker status by reference to the new contracts rather than any earlier ones.
The CAC found that the new contracts were issued on 11 May 2017 with a covering letter addressed to the riders which specifically drew attention to the substitution clause, explaining to riders that they could appoint another person to work on their behalf with Deliveroo at any time and that a substitute working for the rider could log in using the rider's own phone or app details. The covering letter also informed riders that they could work for other companies including competitors; and that they could choose and wear whatever kit they wished to wear when riding for Deliveroo (see paragraphs54 and 55).
As to the new contract itself, cl.2 (as the CAC set out at paragraph 56) provides that the rider is:
“not obliged to do any work for Deliveroo, nor is Deliveroo obliged to make any work available to you. Throughout the term of this Agreement you are free to work for any other party including competitors of Deliveroo.”
At clause 2.4 the contract read:
“It is entirely up to you whether, when and where you log in to perform deliveries, save that it must be in an area in which Deliveroo operates and at a time when that area is open for deliveries.”
At clause 2.51 the contract read:
“While logged into the App, you can decide whether to accept or reject any order offered to you and if you do not wish to receive offers of work at any time, you can use the ‘unavailable’ status.”
At paragraphs 58 and 59, the CAC referred to the warranties to be given by riders under the new contract as a “strict condition of the New Contract”. Those warranties related to rights to residency and work, not having any unspent convictions, complying with all legal obligations and obtaining third-party liability insurance for themselves. In relation to insurance, the new contract states, “any substitute appointed by you need not have their own insurance so long as they are covered under your insurance”.
The CAC dealt with other clauses at paragraphs 60–64. Significantly, it dealt with the substitution clause, cl.8 of the new contract, which recognised a right to appoint a substitute in the following terms:
“8.1 Deliveroo recognises that there may be circumstances in which you may wish to engage others to provide the Services. Deliveroo is not prescriptive about this and you therefore have the right, without the need to obtain Deliveroo's prior approval, to arrange for another courier to provide the Services (in whole or in part) on your behalf. This can include provision of the Services by others who are employed or engage directly by you; however, it may not include an individual who has previously had their Supplier Agreement terminated by Deliveroo for a serious or material breach of contract or who (while acting as a substitute, whether for you or a third party)...
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