United Kingdom: Supreme Court confirms that only those who have an employment relationship have the right to form and join a trade union under Article 11 of the European Convention of Human Rights

06 Dec 2023    2 minute read

In brief

The Supreme Court has confirmed, in a long-running case, that Deliveroo riders did not have the right to form and join a trade union under Article 11 of the European Convention of Human Rights (ECHR) because they did not have an employment relationship with Deliveroo.

Contents

Key takeaways

  • The Supreme Court has confirmed that the right to form and join a trade union under Article 11 of the ECHR does not apply to "everyone" but to a smaller class of "Article 11 workers".
  • The concept of an employment relationship within Article 11 is an autonomous concept that must apply across all member states of the Council of Europe and does not depend on the definitions of workers or employees used in domestic law. 
  • In determining whether there is an Article 11 employment relationship, the court should apply a multifactorial test, looking at the factors set out in the ILO Recommendation No 198 and focusing on the practicalities of the relationship and how it operates in reality. 
  • The CAC had considered that there was no employment relationship as the riders had an "unfettered and genuine right of substitution that operates both in the written contract and in practice." This was a decision that the CAC was entitled to make based on its factual findings – among others, the CAC found that there was no policing by Deliveroo of a rider's use of a substitute, and riders would not have been criticised or sanctioned for using a substitute despite the purported freedom to do so and that Deliveroo did not object to the practice of substitution by a rider for profit or to riders working simultaneously for competitors.
  • Although the court's conclusion on the question of whether there was an employment relationship was sufficient to dispose of the union's appeal, the court also took the opportunity to consider the scope of the right to collectively bargain under Article 11 ECHR and, specifically, whether there is a right to compulsory collective bargaining. Having reviewed the case law of the European Court of Human Rights on this point, the court held that, currently, there was no such right, although it recognised that there might be scope for that to evolve in the future. 

Independent Workers Union of Great Britain v. Central Arbitration Committee and another, Supreme Court

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Contact Information
John Evason
Partner
London
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john.evason@bakermckenzie.com
Jonathan Tuck
Partner
London
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jon.tuck@bakermckenzie.com
Mandy Li
Knowledge Lawyer
London
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mandy.li@bakermckenzie.com

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