IWGB v CAC

Independent Workers of Great Britain Union v Central Arbitration Committee [2023] UKSC 43 is a UK labour law case, concerning sham self-employment and the human right to unionise and collectively bargain.

Facts
Deliveroo cyclists claimed that they should have the right to organise a union under the statutory procedure for recognition by their employer, Roofoods Ltd, under the Trade Union and Labour Relations (Consolidation) Act 1992. Their employer denied that they were even workers, or that workers had rights to organise and collectively bargain. The cyclists claimed before the UK government appointed Central Arbitration Committee that they should be recognised. The CAC argued they were not workers because they could provide substitutes and, in its view, this meant that they did not "personally perform work", as is necessary to be a "worker" under TULRCA 1992 section 296. In clause 8.1, the cyclists' contract said ‘Deliveroo recognises that there may be circumstances in which you may wish to engage others to provide the Services... it may not include an individual who has previously had their Supplier Agreement terminated by Deliveroo for a serious or material breach of contract or who... has engaged in conduct which would have provided grounds for termination... If your substitute uses a different vehicle type to you, you must notify Deliveroo in advance.’ And clause 8.2 said ‘It is your responsibility to ensure your substitute(s) have the requisite skills and training... payment to or remuneration of any substitute at such rate and under such terms as you may agree with that substitute, subject only to the obligations set out in this Agreement....’

In the High Court, Supperstone J held the CAC was not wrong. The cyclists appealed, arguing that that rights under the European Convention of Human Rights article 11 to freely organise and associate had been violated.

Court of Appeal
The Court of Appeal held that the CAC was not wrong, and declined to follow Uber v Aslam which it said did not involve ECHR article 11. Underhill LJ gave the leading judgment.

52. If there is such a tension, I think we must follow the approach in the Good Shepherd case. In the first place, it is a decision of the Grand Chamber, and its reasoning is more explicit than that in Manole. But in any event I think that the natural understanding of the nature of a trade union is that it is an association of workers, however that term may be defined; and it is more straightforward to approach the question of who enjoys trade union freedom by confronting directly the question of who should be regarded as a worker rather than by the frankly artificial route of treating "everyone" as coming within the scope of the right and then seeking to justify any interference by reference to the stringent exclusionary criteria in article 11 (2). As Phillips LJ pointed out in argument, if Lord Hendy's submission were correct it would mean that an association of customers of a supermarket chain would have the right to form and join a trade union in order to try to negotiate better prices, subject only to article 11 (2). That does not seem to be a sensible approach. Lord Hendy's submission ignores the distinction between the general right to freedom of association protected by article 11 and trade union freedom, which is a "special aspect" of that right: see the quotation from Demir at para. 10 above (which is in fact repeated by the Grand Chamber in the Good Shepherd decision itself – see para. 130).

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73. Lord Hendy pointed out that since the decision took the form of a reasoned order the CJEU had not had the benefit of submissions from the parties, or from the Commission or member states; nor had it had an Opinion from the Advocate-General. I accept that, but despite its unusual form the decision is fully reasoned, and indeed the reason why the Court took the course that it did was that it regarded the case as straightforward.

74. Lord Hendy also reminded us that Yodel was a decision of the CJEU and not the EctHR and made no reference to any Convention case-law. It was concerned with the meaning of "worker" in the context of the Working Time Directive rather than with the existence of an employment relationship in the context of a fundamental right such as trade union freedom. I acknowledge that, but the fact remains that the ECtHR habitually refers to "international law" concepts where appropriate, including the case-law of the CJEU, and both the ECtHR and the CJEU take guidance from the ILO. In my view it is legitimate to treat the Luxembourg case-law as giving some indication of the approach likely to be taken to issues of worker status in Strasbourg (though the amount of space which I have had to devote to expounding the decision in Yodel may give a misleading impression of its centrality to my analysis).

75. Although the skeleton arguments referred to various other cases which it was suggested might have a bearing on whether the riders were in an employment relationship with Deliveroo (including several decisions of the CJEU, which, however, do no more than state the principles applicable to the determination of worker status in terms identical to those in Yodel) none of them were on facts sufficiently similar to advance the argument, and I need not address them here. I will return later to the decision of the Supreme Court in Uber v Aslam which was the subject of the post-hearing submissions.

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77. I believe that that was a conclusion to which the CAC was entitled to come. The particular feature on which it relied was its finding that riders are, genuinely, not under an obligation to provide their services personally and have a virtually unlimited right of substitution. That is on any view a material factor in the decision whether they are in an employment relationship with Deliveroo. Paragraph 13 of ILO R198 refers to the fact that the work "must be carried out personally by the worker" as an indicator of an employment relationship (see para. 57 above); and it follows at least that the absence of such an obligation must be a contra-indicator of worker status (as it was treated in Yodel). However, in my view the CAC was entitled to regard it as decisive. I do not think that the position taken in English law that an obligation of personal service is (subject to the limited qualifications acknowledged in Pimlico Plumbers) an indispensable feature of the relationship of employer and worker is a parochial peculiarity. On the contrary, it seems to me to be a central feature of such a relationship as ordinarily understood[7], and I see no reason why its importance should be any the less in the context of article 11.

84. In my view the reasoning in Uber v Aslam does not advance the arguments in this case. The starting-point must be that, as Mr Jeans emphasised, Uber did not involve any issue under article 11. Equally importantly, however, there was no issue about personal service: Uber did not rely on any substitution clause. I have considered whether it might nevertheless be worthwhile to try to work out how the Supreme Court's approach, particularly on the Autoclenz aspect, would apply to the facts of the present case, on the basis that, if I were to conclude that Lord Leggatt's reasoning meant that the CAC's findings on that issue were wrong as a matter of domestic law, that should inform my view as to whether they were acceptable in the article 11 context. But although tempted I have concluded that I should not go down that road. It is not simply that the exercise of making findings about the position in English law in order to inform a decision about the Strasbourg law is intellectually rather impure. More importantly, in the context of these proceedings it would mean allowing in by the back door a challenge to the CAC's decision which IWGB does not have permission to pursue: as I have noted, Lord Hendy rightly acknowledged that he could not rely on Uber to attempt to re-open the refusal of permission on the domestic law issues. It would also be an unsatisfactory exercise for two other reasons. First, the CAC made its relevant findings of fact on the basis of what I might call unvarnished Autoclenz, without reference to any further factual questions which might be raised as a result of Lord Leggatt's analysis. Second, the question of how that analysis would apply on the facts of the present case, as found by the CAC, does not seem to me straightforward.

Coulson LJ and Phillips LJ agreed.

Supreme Court
The Supreme Court upheld the Court of Appeal.

Significance
The case brought the UK's protection of basic worker rights down, by again enabling worker status to be determined unilaterally by an employer's contract term.