The Independent Workers Union of Great Britain v Central Arbitration Committee
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 05 December 2018 |
| Neutral Citation | [2018] EWHC 3342 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/810/2018 |
| Date | 05 December 2018 |
[2018] EWHC 3342 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Supperstone
Case No: CO/810/2018
The Queen on the application of
and
John Hendy QC, Katharine NewtonandMadeline Stanley (instructed by Harrison Grant Solicitors) for the Claimant
The Defendant was not represented
Christopher Jeans QC and Tom Cross (instructed by Lewis Silkin LLP) for the Interested Party
Hearing dates: 14–15 November 2018
Approved Judgment
Introduction
The Claimant, the Independent Workers' Union of Great Britain (“the Union”), is an independent trade union. The Union submitted an application to the Central Arbitration Committee (“the CAC”) dated 28 November 2016 that it should be recognised for collective bargaining purposes by Roofoods Limited t/a Deliveroo (“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 drivers (known as “Riders”) who work in the Camden & Kentish Town zone (“CKT zone”) in London. Deliveroo is a well-known food and drinks delivery company.
Following a four-day hearing by the CAC, by a decision dated 14 November 2017 and subsequently revised on 20 November 2017 (“the Decision”), the CAC found that the Riders in the proposed bargaining unit are not workers within the meaning of s.296 of the 1992 Act and thus were not eligible to be the subject of a recognition claim (para 134).
By a claim form filed on 12 February 2018 the Union challenged that decision on five grounds. On 26 April 2018 Butcher J refused permission on the papers on all grounds. On 15 June 2018 Simler J, at a renewed application for permission, granted permission to challenge the Decision on one ground alone. Having concluded that Grounds 1–3 and 5 failed to raise arguable errors of law as grounds for judicial review, Simler J stated at paragraph 42 in her judgment:
“With some hesitation I have reached a different conclusion in relation to ground 4, which argues that the collective bargaining rights in Art.11 [ECHR] require an interpretation of s.296(1) and the personal performance obligation [that] does not exclude these riders from exercising those rights. The CAC did not engage with this argument because of its factual findings, but arguably the point required to be addressed as a matter of principle, irrespective of the strength of the facts of the particular case. In relation to this ground, therefore, I am persuaded that it merits fuller consideration and have concluded that permission should be granted in relation to ground 4…”
Mr John Hendy QC appears, together with Ms Katharine Newton and Ms Madeline Stanley, for the Claimant. Mr Christopher Jeans QC and Mr Tom Cross appear for Deliveroo.
Legislative Framework
Schedule A1 to the 1992 Act provides a statutory framework within which independent trade unions can apply for recognition to be entitled to conduct collective bargaining in respect of a “bargaining unit”. “Collective bargaining” for that purpose refers to “negotiations relating to pay, hours and holidays” or other agreed matters (para 3).
A trade union can seek recognition from an “employer” only in respect of “workers” (s.70A of Sch.1, para 1 of the 1992 Act).
Section 296(1) of the 1992 Act provides:
“(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
(c) in employment under or for the purposes of a government department…”
Article 11 of the European Convention on Human Rights (“ECHR”) provides:
“(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.”
Factual Background
The Union seeks to rely on the definition of worker in s.296(1)(b) (“limb (b)”).
The parties agreed that the CAC should consider the question of workers' status by reference to a new contract introduced on 11 May 2017 (“the New Contract”).
The terms of the New Contract are set by Deliveroo and there is no scope for individual negotiation (Decision, para 52).
The New Contract headed “SUPPLIER AGREEMENT” states by way of “BACKGROUND”:
“A. You are a supplier in business on your own account who wishes to arrange the provision of delivery services to Deliveroo subject to the terms and conditions below.
B. You are free to supply the Services either personally or through someone else engaged by you in accordance with clause 8. ‘You’ should be read as meaning either your personally, or procured by you in relation to any person engaged by you. Should you choose to provide the Services through a third party in this way, you remain responsible for ensuring that the obligations set out in this Agreement are complied with.”
Clause 2 (“SUPPLIER SERVICES”) states, so far as is material:
“2.1 Deliveroo authorises You to arrange the provision of Services from time to time on the terms set out in this Agreement.
2.3 You are not obliged to do any work for Deliveroo, nor is Deliveroo obliged to make available any work to you. Throughout the term of this Agreement you are free to work for any other party including competitors of Deliveroo.
2.4 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.
2.5 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.”
Clause 4 (“FEES AND INVOICING”) provides at clause 4.1:
“Deliveroo will pay you a delivery fee (‘Delivery Fee’) for each completed delivery.”
Clause 5 (“WARRANTIES”) states:
“5.1 As strict conditions of this Agreement you warrant upon commencement and continuously throughout the term of this Agreement that:
(a) You have the right to reside and work in the United Kingdom and have all necessary visas, licences and permits allowing you to do so;
(b) You have no unspent convictions for any criminal offence;
(c) You will comply with all other legal obligations (including the Highway Code) which apply to you or the provision of the Services from time to time;
(d) You will ensure that, to allow customers to track the progress of deliveries, Deliveroo is able to track using GPS technology the progress of any delivery which you agree to accept.”
Clause 8 (“RIGHT TO APPOINT A SUBSTITUTE”) states:
“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 engaged 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) has engaged in conduct which would have provided grounds for such termination had they been a direct party to a Supplier Agreement. If your substitute uses a different vehicle type to you, you must notify Deliveroo in advance.
8.2 It is your responsibility to ensure your substitute(s) have the requisite skills and training, and to procure that they provide the warranties at clause 5 above to you for your benefit and for Deliveroo's benefit. In such event you acknowledge that this will be a private arrangement between you and that individual and you will continue to bear full responsibility for ensuring that all obligations under this Agreement are met. All acts and omissions of the substitute shall be treated as though those acts and/or omissions were your own. You shall be wholly responsible for the payment to or remuneration of any substitute at such rate and under such terms as you may agree with that substitute, subject only to the obligations set out in this Agreement, and the normal invoicing arrangements as set out in this Agreement between you and Deliveroo will continue to apply.”
Clause 10 (“TERMINATION”) provides at clause 10.1:
“You may terminate this Agreement with Deliveroo at any time and for any reason on giving Deliveroo immediate notice in writing.”
The CAC in the Decision at paragraphs 66–86 considers “ How the parties conduct themselves in practice”. At paragraphs 76–86 the CAC considers “Substitution in practice”. This section of the Decision includes the following findings:
“68. Riders with a CKT Ops Code are paid on a ‘fee per delivery’ (‘FPD’) basis, also sometimes known as ‘drop fee’....
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