Since this is a legal article (but not legal advice) I suppose it is best to be as precise as possible. So let us start by banishing the phrase ‘gig worker’ and replacing it with the phrase ‘gig operative’. With me so far? Excellent, let us move on then.
The Supreme Court has once again descended into the gig operative issue in Independent Workers Union of Great Britain v Central Arbitration Committee & Anor [2023] UKSC 43. This time, it is the relationship between Deliveroo and the ‘riders’ (although sometimes the operatives might come in a car, but we’ll let that misnomer slide) that were the subject matter of the appeal that has reached the highest court in the land. Deliveroo, or ‘Roofoods Ltd t/a as Deliveroo’ to give the company its full title, was approached by the Union for collective bargaining purposes. Deliveroo declined to do so and as a result the Union approached the CAC for a decision that Deliveroo did have to engage with Union. The question was whether the riders would fall within s.269 Trade Union And Labour Relations (Consolidation) Act 1992, which section required the people in respect of whom the Union wished to be recognised to be ‘workers’. No doubt you will see now be seeing the reason for my earlier pedantry.
However, do not get too comfortable that you understand the issues. After the CAC said “no actually, the riders are not workers under that section” (I paraphrase slightly), “because there is a right of substitution so no obligation to perform work personally”, the Union sought a judicial review. But the only issue in the JR allowed to be advanced was whether Article 11 of the European Convention on Human Rights (as set out in Sch 1 Human Rights Act 1998) was infringed by this result. Article 11 is of course the right to freedom of assembly and association, more specifically, ‘the right to form and to join trade unions’.
Cutting a lot of complicated analysis out, the Supreme Court upheld the CAC, High Court and Court of Appeal. The riders were not in an employment relationship that engaged Article 11. Even if Article 11 could apply to the riders, it was not a breach of Article 11 for the 1992 Act to restrict the application of trade union bargaining so as to as to exclude the riders. So that clever argument failed.
So, what does the case tell us? Well, the most important thing is really what was not argued in the courts. It was never a live issue from the High Court onwards that the Deliveroo model does not meet the worker definition in the relevant Act. Interestingly the CAC’s fact finding approach was that what happened in reality matched the terms of the agreement between Deliveroo and the riders, namely that they had a near absolute right to substitute. So I suppose all the case tells us is that when it does come to these employee/worker/contractor issues, the best we can really say is ‘it depends’.
Alex Mellis is an Employment barrister at No5 Barristers’ Chambers.
