Independent Workers Union of Great Britain v Central Arbitration Committee and another

JurisdictionEngland & Wales
JudgeLord Lloyd-Jones,Lady Rose,Lord Briggs,Lord Stephens,Lord Richards
Judgment Date21 November 2023
Neutral Citation[2023] UKSC 43
CourtSupreme Court
Independent Workers Union of Great Britain
(Appellant)
and
Central Arbitration Committee and another
(Respondents)

[2023] UKSC 43

before

Lord Lloyd-Jones

Lord Briggs

Lord Stephens

Lady Rose

Lord Richards

Supreme Court

Michaelmas Term

On appeal from: [2021] EWCA Civ 952

Appellant

Lord Hendy KC

Katharine Newton KC

Madeline Stanley

(Instructed by Harrison Grant Ring)

2 nd Respondent

Christopher Jeans KC

Tom Cross

Raphael Hogarth

(Instructed by Lewis Silkin LLP)

Intervener – Secretary of State for Business and Trade

Daniel Stilitz KC

Stephen Kosmin

(Instructed by Government Legal Department)

Respondents

(1) Central Arbitration Committee

(2) Roofoods Ltd, trading as Deliveroo

Heard on 25 and 26 April 2023

Lord Lloyd-Jones AND Lady Rose ( with whom Lord Briggs, Lord Stephens and Lord Richards agree):

(1) Introduction
1

Deliveroo riders have become a familiar sight in our streets as they journey on their bikes or motor-scooters from restaurants to the homes and offices where people have ordered a take-away meal using the Deliveroo online app. A substantial number of those riders who work in a particular zone in London have joined the Appellant, the Independent Workers Union of Great Britain, which is an independent trade union (“the Union”). They want the Union to negotiate on their behalf with Deliveroo to improve the conditions under which they perform their services. Deliveroo has refused to enter into collective bargaining negotiations with the Union.

2

Where an employer does not agree to recognise and bargain with a union seeking to represent workers employed by that employer, a union may invoke the apparatus set up in Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). That procedure does not oblige the employer actually to conclude a collective agreement with a recognised union, but it may ultimately result in a method for collective bargaining being imposed on the employer.

3

On 7 November 2016, the Union made a formal request to Deliveroo to recognise it for collective bargaining in respect of riders in the Camden and Kentish Town area (“CKT”) of North London (“the Riders”). Deliveroo rejected this request on 21 November and on 28 November 2016 the Union made an application to the Central Arbitration Committee (“the CAC”). The CAC is the quasi-judicial body which, under Schedule A1, has power to order an employer to recognise a union and engage in collective bargaining if the conditions set out in that Schedule are met.

4

One of those conditions is that the people in respect of whom the union wishes to be recognised are “workers” within the meaning of section 296 TULRCA, set out below. Deliveroo contended that the Riders did not fall within that definition and the CAC agreed in its decision dated 14 November 2017. The CAC rejected the Union's alternative argument that a refusal to recognise the Union for collective bargaining based on the definition of “worker” in the domestic legislation would constitute a breach of article 11 of the European Convention on Human Rights (“the ECHR”) because they are workers for the purposes of that article.

5

The Union sought permission to challenge the CAC's decision by way of judicial review. The respondent to that challenge was the CAC itself but it has played no part in the proceedings. The substantive respondent was Deliveroo as Interested Party and it was represented at the oral hearing of the application for judicial review held before Simler J.

6

In their application, the Union relied on a number of grounds which Simler J held were unarguable. She gave permission for judicial review only on the article 11 ground [2018] EWHC 1939 (Admin).

7

Article 11 of the ECHR (as set out in Schedule 1 to the Human Rights Act 1998) states:

“Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

8

The Union's challenge therefore proceeded on the basis that the Riders do not fall within the domestic definition of “worker” under section 296 TULRCA but that there is an issue as to whether they fall within the class of people with rights concerning trade union membership under article 11. In order to comply with the Riders' rights under article 11, the Union argued that the definition in section 296 must be read down pursuant to section 3 of the Human Rights Act 1998 so that it includes them. The Union did not seek a declaration of incompatibility of the statutory provision with article 11 in its judicial review challenge in the event that the court found that there was an infringement of the Riders' rights but that it was not possible to read down the legislation to comply with article 11.

9

The Union's judicial review challenge was dismissed by Supperstone J in a judgment handed down on 5 December 2018 [2018] EWHC 3342 (Admin). That judgment was upheld by the Court of Appeal (Underhill, Coulson and Phillips LJJ) [2021] EWCA Civ 952, [2022] ICR 84.

10

The issues that arise from the appeal before this court are as follows:

(i) Issue 1: Do the Riders fall within the scope of article 11 such that the rights conferred by that article to join and be represented by a trade union are conferred on them?

(ii) Issue 2: If the Riders do have rights under article 11, do those rights include the right that the United Kingdom legislate to require Deliveroo as their employer to engage in collective bargaining with the Union either in all circumstances or, alternatively, where the United Kingdom has chosen to confer such a right under Schedule A1 on some, but not all workers, within the scope of article 11?

(iii) Issue 3: If the Riders have such a right to require Deliveroo to bargain with the Union, is their exclusion from the apparatus of Schedule A1 because of the restrictive definition of “worker” in section 296 a violation of that right or is it justified under article 11(2) as being necessary in a democratic society etc?

(iv) Issue 4: If there has been a violation of the Riders' rights under article 11 because they are not covered by the definition of “workers”, can that definition be read down so as to include them?

11

Before this court the Secretary of State was granted permission to intervene. The Union was represented at the hearing by Lord Hendy KC, Katharine Newton KC and Madeline Stanley who were all acting pro bono. Counsel for Deliveroo were Christopher Jeans KC, Tom Cross and Raphael Hogarth and Counsel for the Secretary of State were Daniel Stilitz KC and Stephen Kosmin. We are grateful to counsel for their written and oral submissions.

(2) The relevant domestic provisions
12

Since the appeal proceeds on the basis that the Riders are not workers within the meaning of the domestic legislation, we can deal briefly with what the relevant domestic provisions say.

13

Schedule A1 to TULRCA was introduced by the Employment Relations Act 1999. It opens with the statement that a trade union seeking recognition to be entitled to conduct collective bargaining on behalf of the group of workers may make a request in accordance with Part 1 of the Schedule. Paragraph 3(3) states that references to collective bargaining are “to negotiations relating to pay, hours and holidays”, subject to the parties being able to agree that it will cover other matters, under paragraph 3(4). The first step is for the union to make a request for recognition to the employer. There are various pre-conditions to the making of a valid request including that the union is independent, that the employer employs at least 21 workers and that the request complies with any requirements specified in an order made by the Secretary of State under paragraph 9. The request must also identify the bargaining unit, that is to say the group of workers on whose behalf the union wishes to be recognised.

14

One of the conditions of admissibility of the request which, although not relevant to the present appeal, is important in several of the cases we discuss later, is paragraph 35 of Schedule A1. This provides that an application is not admissible if the CAC is satisfied that there is a collective agreement already in force under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit. If the union recognised by the employer to conduct collective bargaining is not an independent union, then a worker can apply to the CAC to have the bargaining arrangement ended: paragraph 137 of Schedule A1.

15

If the employer does not accept the union's request for recognition, the union may apply to the CAC under paragraph 11 of Schedule A1 to decide whether the proposed bargaining unit is appropriate and whether the union has the support of the majority of the workers constituting the appropriate bargaining unit. The CAC is a body established under sections 259 to 265 TULRCA and is made up of people experienced in industrial relations, some as representatives of employers and some as representatives of workers.

16

If the CAC accepts the union's application, it must try to help the parties reach an agreement as to what the appropriate bargaining unit is. If that fails then according to paragraph 19 the...

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