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Right to Bargain Collectively Under Article 11 does not Apply to Workers without Personal Service Obligation

In the recent case of R (in the Application of the Independent Workers Union of Great Britain) v Central Arbitration Committee [2018], the High Court has dismissed the judicial review challenge brought by the Claimant in relation to its application last year to the Central Arbitration Committee (“CAC”) for statutory recognition to conduct collective bargaining in respect of a particular group of Deliveroo riders.

Article 11 of the European Convention on Human Rights 1953 (“ECHR”) provides the Right to Freedom of Association. The Claimant argued that UK law should be interpreted so as not to exclude individuals whose contracts do not technically satisfy the requirement of personal service. The court considered s.296 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”), which, for collective bargaining purposes, provides that workers includes an individual who works ‘a) under a contract of employment; or, b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract’ .        

The question the High Court considered was whether Article 11 of the ECHR 1953 extends the statutory right to collective bargaining to those without a contractual obligation to perform work personally?

The High Court upheld the CAC’s decision and found that Deliveroo riders were not considered workers for the purposes of collective bargaining recognition under s.296 TULRCA 1992. It was held that Article 11 was not engaged on two grounds. Firstly, Deliveroo riders were not in an employment relationship, this was accepted by both parties who turned their attention to s.296(b) TULRCA 1992. This provision was also unfulfilled as the Deliveroo riders had a right of substitution and no obligation to provide personal service. Secondly, even if Article 11 was engaged, limiting collective bargaining rights to workers with a contractual obligation of personal service was deemed reasonable and proportionate under Article 11(2). Without this restriction, it was considered that there would be a risk that collective bargaining provisions could affect negotiations between commercial parties.

This case will be well received by companies operating in the gig economy who have faced a number of disappointing judgments in relation to employment status cases. However, this may not be the end of the matter as the Claimant has already tweeted their intention to appeal the decision.

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