The Independent Workers Union of Great Britain v The Central Arbitration Committee
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Coulson LJ,Phillips LJ |
| Judgment Date | 24 June 2021 |
| Neutral Citation | [2021] EWCA Civ 952 |
| Date | 24 June 2021 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/3104 |
and
[2021] EWCA Civ 952
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Coulson
and
Lord Justice Phillips
Case No: C1/2018/3104
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (Administrative Court)
Mr Justice Supperstone
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Hendy QC, Ms Katharine Newton QC and Ms Madeline Stanley (instructed by Harrison Grant Solicitors) for the Appellant
Mr Christopher Jeans QC and Mr Tom Cross (instructed by Lewis Silkin LLP) for the Interested Party
The Respondent did not appear
Hearing dates: 2 nd and 3 rd February 2021
Further written submissions: 8 th and 23 rd March 2021
Approved Judgment
INTRODUCTION
This appeal concerns collective bargaining rights in respect of Deliveroo riders. The Deliveroo service is operated by a company called Roofoods Ltd: I will refer to it simply as Deliveroo. The Independent Workers Union of Great Britain (“IWGB”) applied to the Central Arbitration Committee (“the CAC”), under the compulsory recognition procedures in Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, to be recognised by Deliveroo for collective bargaining in respect of a group of riders in its “CKT [Camden & Kentish Town] food delivery zone”. By a decision dated 14 November 2017 the CAC declined to accept the application on the basis that the riders were not “workers” within the meaning of the 1992 Act because the terms under which they provide their services did not require them to do so personally but permitted the use of substitutes.
IWGB sought permission to challenge that decision by way of judicial review. Permission was given by Simler J on a single ground relating to the effect of article 11 of the European Convention on Human Rights. The Defendant to the claim was the CAC, but it took no part in the proceedings and it was in practice defended by Deliveroo as an Interested Party. By a judgment handed down on 5 December 2018 Supperstone J dismissed the claim.
This is IWGB's appeal, with the permission of Males LJ, against Supperstone J's decision. It has been represented by Lord Hendy QC, Ms Katharine Newton QC and Ms Madeline Stanley. Again, the CAC has played no part, but Deliveroo has resisted the appeal as an Interested Party, represented by Mr Christopher Jeans QC and Mr Tom Cross. The same counsel appeared below.
Following the hearing we gave the parties permission to file written submissions about the effect of the judgment of the Supreme Court in Uber BV v Aslam [2021] UKSC 5, [2021] ICR 657. That accounts for some of the delay between the conclusion of the hearing and the promulgation of this judgment.
THE BACKGROUND LAW
THE STATUTORY DEFINITION OF “WORKER”
It is unnecessary to give any summary of the procedure under Schedule A1 of the 1992 Act. The only point that matters for present purposes is that it is concerned only with recognition in respect of “workers”. That term is defined in section 296 (1) of the Act as follows:
“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 (otherwise than as a member of the naval, military or air forces of the Crown) in so far as such employment does not fall within paragraph (a) or (b) above.”
That definition is in substantially similar, though not identical, terms to that of “worker” in section 230 (3) of the Employment Rights Act 1996 and other employment protection legislation.
The IWGB's case in the CAC was that the riders in respect of whom it sought recognition worked for Deliveroo under contracts of the kind specified under limb (b) of section 296 (1). It will be seen that it is an essential part of the definition under limb (b) that the putative worker should agree to perform work or services “personally” for the other party. (I should note that a requirement of personal service has equally always been regarded as a necessary element in a contract of service falling under limb (a) of the definition.) Prima facie if the express terms of the contract permit the putative worker to provide the work or services in question through someone else, i.e. a substitute, that requirement is not satisfied. However, that is subject to two qualifications.
First, it is established in the case-law that the requirement of personal performance may be satisfied notwithstanding that the worker has a right to engage a substitute in some, limited, circumstances. The position is summarised at para. 84 of the judgment of Sir Terence Etherton MR in Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51, [2017] ICR 657, as follows 1:
“Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.”
Second, in Autoclenz Ltd v Belcher [2011] UKSC 41, [2011] ICR 1157, the Supreme Court held that the employer was not entitled to rely on a substitution clause in order to
deny a claim for worker status if it did not reflect the true agreement between the parties and was in that sense a sham. The principles underlying the decision in Autoclenz have recently been elucidated in Uber v Aslam, to which I will have to return below.ARTICLE 11
Article 11 of the Convention reads:
“ 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.”
We are in this appeal concerned with “the right to form and to join trade unions” referred to in the final part of paragraph 1. That is described in the seminal decision of the European Court of Human Rights (“the ECtHR”) in Demir v Turkey (2009) 48 EHRR 54 as “one form or a special aspect” of the right to freedom of association conferred by article 11: see para. 109 of the judgment of the Grand Chamber. In the later decision of the Grand Chamber in the Good Shepherd case, which I discuss below, it is given the label “trade union freedom” (see para. 130). It was common ground before us that the article 11 right to trade union freedom is enjoyed by trade unions themselves as well as by their members.
The importance of Demir is that it established that “the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and to join trade unions for the protection of [one's] interests’ set forth in Article 11 of the Convention” (see para. 154 of the judgment). That means that in some circumstances “the state may not simply be prohibited from itself interfering with [the right of collective bargaining] but may in principle have positive obligations to secure [its] effective enjoyment”: see para. 38 of my judgment in Pharmacists' Defence Association Union v Boots Management Services Ltd [2017] EWCA Civ 66, [2017] IRLR 355 (“the Boots case”). The extent of those positive obligations is one of the issues in this appeal.
By section 3 (1) of the Human Rights Act 1998 legislation must be interpreted in a way which is compatible with Convention rights so far as it is possible to do so.
THE BACKGROUND FACTS
I can summarise the background facts very shortly. Those interested in a full account of the background can find it in the careful and thorough decision of the CAC, which is available online.
As most readers of this judgment will no doubt know, Deliveroo's business involves the delivery of prepared food and drink from restaurants and other food outlets, which it describes as its “partners”, to customers' homes or other premises. In London the collection and delivery of the items is carried out almost entirely by cyclists, referred to as...
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