No collective bargaining rights for Deliveroo drivers

Posted: 21/11/2023

The Supreme Court has ruled today on the status of Deliveroo food delivery riders for the purposes of collective bargaining in the case of Independent Workers Union of Great Britain v Central Arbitration Committee (CAC) [2023] UKSC 43. The court considered the factual matrix, which showed that:

• the contract between the riders and Deliveroo gave riders a broad and virtually unfettered right to appoint a substitute to take on their jobs, which was totally inconsistent with there being an employment relationship;
• Deliveroo did not police a rider’s decision to use a substitute and riders would not be criticised or sanctioned for doing so;
• Deliveroo did not terminate riders’ contracts for failing to accept a certain percentage of orders, or failing to make themselves sufficiently available. The riders were free to work or not as convenient for them; and
• Deliveroo did not object to riders working simultaneously for Deliveroo’s competitors.

The Supreme Court examined Article 11 of the European Convention on Human Rights, which protects the general rights of freedom of peaceful assembly and freedom of association with others, and a specific right to form and join trade unions, together with the case law of the European Court of Human Rights, from which it is clear that:

• the right to form a trade union only arises in the context of an employment relationship; and
• to decide whether there is an employment relationship for the purposes of Article 11, a court should have regard to the factors set out in the International Labour Organisation Employment Relationship Recommendation, 2006 (No 198), which makes the point that the assessment of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contract or other agreement between the parties. The correct approach requires consideration of many different factors, focusing on the practicalities of the relationship and how it operates in reality.

The Supreme Court held that the CAC had rigorously scrutinised the substance of the relationship between Deliveroo and the riders. It examined in detail how the contract between Deliveroo and the riders operated in practice, and gave close scrutiny as to whether the provisions in that contract genuinely reflected the true relationship between the parties. Accordingly, in all the circumstances, the CAC was entitled to conclude that the provisions in the contract genuinely reflected the reality of the relationship, and that it was not an employment relationship.

Whilst this is the end of the road for the claim in this gig economy business, the case is fact specific. The Supreme Court’s ruling does not mean that other gig economy businesses may not be subjected to collective bargaining being imposed by the CAC.

Return to news headlines