The High Court has dismissed a claim by the Independent Workers’ Union of Great Britain (IWGB) seeking to overturn a decision of the Central Arbitration Committee (CAC) that Deliveroo riders are self-employed, not workers within the meaning of Section 296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), so are not eligible to form a collective bargaining unit.

An application for trade union recognition had been submitted to the CAC by the IWGB, requesting that a bargaining unit comprising delivery riders in the Camden and Kentish Town districts of London be recognised for collective bargaining by RooFoods Limited T/A Deliveroo.

However, a clause in Deliveroo riders’ contracts giving them the right to substitute themselves either before or after they have accepted a particular job, and evidence of this operating in practice, proved fatal to the application. The CAC concluded: ‘In light of our central finding on substitution, it cannot be said that the riders undertake to do personally any work or services for another party’…’If a rider accepts a particular delivery, their undertaking is to either do it themselves in accordance with the contractual standard, or get someone else to do it. They can even abandon the job part way having only to telephone rider support to let them know. A rider will not be penalised by Deliveroo for not personally doing the delivery her or himself, provided the substitute complies with the contractual terms that apply to the rider.’

The IWGB challenged that finding on the ground that the collective bargaining rights in Article 11(1) of the European Convention on Human Rights – on freedom of assembly and association – require an interpretation of TULRCA Section 296(1) and the personal performance obligation it contains that does not exclude the riders from exercising those rights.

The High Court rejected the IWGB’s challenge, finding that Article 11(1) was not engaged in this case. The Deliveroo riders are not in an employment relationship and neither domestic nor Strasbourg case law supports the claim that they have the right to form a collective bargaining unit.

In the Court’s view, any interference with the rights contained in Article 11(1) was of a limited nature. The personal service obligation does not prevent Deliveroo riders from joining the IWGB should they choose to do so, or prevent them making voluntary arrangements. All that it precludes is the compulsory mechanism provided by TULRCA Schedule A1 for collective bargaining recognition.

In any case, the Court found that the personal service obligation could be justified under Article 11(2) as necessary to ‘the objective of preserving freedom of business and contract’ by limiting the cases in which collective bargaining should apply. Any resulting interference with the riders’ Article 11 rights is proportionate, striking a fair balance between competing interests in that it is limited to preventing those who do not have to do work or perform work personally from initiating compulsory recognition procedures.

The IWGB has made clear its intention to appeal the High Court’s decision.