In late 2016, the Central Arbitration Committee held that a group of Deliveroo riders were not workers, and that they were not therefore entitled to apply for statutory recognition for collective bargaining purposes, using the statutory recognition procedure set out in the Trade Union and Labour Relations (Consolidation) Act. The Independent Workers Union of Great Britain challenged this decision by way of judicial review, and that challenge has now been rejected by the High Court. The judicial review did not re-examine the issue of whether the Deliveroo drivers were workers. It was limited to considering whether the CAC's decision infringed Deliveroo riders' rights to bargain collectively under Article 11 of the European Convention on Human Rights, and if so, whether UK law should be interpreted so as not to exclude the riders from the statutory recognition procedure.
The High Court found that Article 11 of the European Convention on Human Rights was not engaged in relation to non-workers and they did not have any right to collective bargaining. Even if that was wrong, it would not be unlawful to deny non-workers collective bargaining rights. It said that this approach could be justified on the basis that it preserves the freedom of businesses to operate, by limiting the cases in which collective bargaining will apply, and is a proportionate means of achieving that objective taking into account competing interests. The Court further held that, even if Article 11 had been engaged, the definition of "worker" could not be interpreted in such a way as to cover Deliveroo drivers.
This decision means that groups of individuals who want to secure trade union recognition will still need to show that they satisfy the definition of worker and have an obligation to provide personal service. However, as we know from other recent decisions, many of those working in the gig economy will be considered workers, even if not formally engaged as such, and the decision does not affect the existing case law on who is a worker.