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The Supreme Court confirms an important limitation on trade union recognition rights
Adrian Fryer
In November 2023, the Supreme Court handed down their judgment in the case of Independent Workers Union of Great Britain v CAC. The Union had applied to the CAC for recognition in respect of a group of riders working for Deliveroo.
The CAC had refused to accept the Union’s application on the basis that the riders were not ‘workers’ of Deliveroo, within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992. Riders were not required to provide personal service and were allowed to use substitutes.
The Union appealed the refusal on the basis that it breached Article 11 of the European Convention on Human Rights, arguing that the definition of ‘worker’ in the Act should have been construed to give effect to Article 11. Article 11 protects the right to freedom of association and to form and join a trade union. European case law makes it clear that the Article 11 right to form and join a trade union only applies to those in an employment relationship and that this should be looked at through the lens of the European concept of an employment relationship. The Supreme Court had to have regard to the factors set out in the International Labour Organisation Employment Relationship Recommendation, 2006 No 198 in considering whether the riders were employees. The Recommendation focuses on a multifactorial approach looking at performance of the work and remuneration of the worker.
Applying this test, the Supreme Court held that the riders were not in an employment relationship, so the provisions of Article 11 which protect trade union activity did not apply to them. The CAC were correct to refuse the application for recognition.