Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
This case concerned delivery drivers for Deliveroo who worked under ‘supplier agreements’ which were non-negotiable. In that agreement they are defined as ‘independent contractors’ and that there is no obligation upon Deliveroo to provide work nor is there an obligation on the rider to accept jobs. The riders are also able to substitute their work regardless of whether the substitute is also under the supplier agreement.
The IWGB applied for a group of Deliveroo riders to be recognised for collective bargaining purposes. This was rejected by the Committee on the basis that they were not workers as required under Section 296(1) of the Trade Union and Labour Relations (Consolidation) Act.
The IWGB judicially reviewed the decision which focused on whether the right to collective bargaining protected under Article 11 of the ECHR was sufficiently protected. This focused on the personal service requirement for worker status and whether it was unduly restricting the protection of Deliveroo riders.
The High Court dismissed the appeal citing that Article 11 was not engaged. This was on the basis that there was no ECtHR jurisprudence extending the right to those who were not in an employment relationship.
The IWGB appealed to the Court of Appeal. They considered the ECtHR decision of Sindicatul v Romania which outlined that the trade union element of Article 11 only applied due to the existence of an employment relationship and that the ILO Recommendations should be examined to determine if there was such an employment relationship.
The Court of Appeal outlined that the ILO Recommendations were very similar to domestic law. It requires subordination and the need for the work to be carried out ‘personally’ which aligns with the need for personal service.
As a result, the appeal was dismissed with the Court of Appeal citing that Article 11 does not extend to everyone, but rather extends to those only in an employment relationship. As this was not satisfied, the appeal could not succeed.
Practical Lessons
This case demonstrates the inter-relationship between employment status and the protection that is afforded by virtue of Trade Union protection within Article 11 of the ECHR. To this end, the ECtHR and the Court of Appeal have made it clear that the rights are not available to absolutely everyone but rather they are constrained to those who are in employment relationships.
Helpfully, the domestic law aligns with the international definitions that have arisen for worker status. On a practical point, it does lead to some curtailment of where Trade Union rights can arise. It will be interesting to see how this develops and whether a distinction continues between Uber drivers and Deliveroo riders.
https://www.bailii.org/ew/cases/EWCA/Civ/2021/952.html
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