In the latest development regarding worker status and the gig economy, and applying the recent Supreme Court decision in Pimlico Plumbers (for further details, please see "Supreme Court confirms Pimlico Plumbers are workers"), the High Court has rejected the Independent Workers of Great Britain (IWGB) trade union application for a judicial review of the Central Arbitration Committee (CAC)'s decision that Deliveroo riders are not workers based on the terms of Deliveroo's substitution clause (for further details, please see "Deliveroo defends union recognition application by demonstrating riders are genuinely self-employed").

The High Court applied what the Supreme Court held in Pimlico Plumbers to be the sole test of whether there is an "obligation of personal performance". It noted that the CAC had been sceptical of the concept of Deliveroo's substitution clause, which meant that riders were under no obligation to work or to perform work personally even after they had accepted an order.

The High Court held that the contractual clause on which Deliveroo relied can be clearly distinguished from that in Pimlico Plumbers. Unlike in Pimlico Plumbers, Deliveroo's substitution clause is:

  • expressly detailed in riders' contracts;
  • prominently drawn to riders' attention; and
  • operated in practice, including during deliveries.

These findings of fact meant that the CAC had been entitled as a matter of law to find that Deliveroo riders are not workers under the relevant statutory definition.

However, the High Court granted permission for a judicial review in due course based on one of the five grounds of appeal advanced by the IWGB – namely, that the CAC failed to properly engage with the IWGB's claims that the definition of a 'worker' in the Trade Union and Labour Relations (Consolidation) Act 1992 – in the context of an application for trade union recognition – must be interpreted in a manner compatible with Article 11 of the European Convention on Human Rights.

The High Court granted permission for a judicial review on this limited basis "with some hesitation". It also refused the IWGB's application for costs protection, noting that this ground of appeal does not raise issues of general public importance as worker-status cases are highly fact-specific; therefore, the appeal would not be a matter of common interest to the wider gig economy.

For further information on this topic please contact Colin Leckey or David Hopper at Lewis Silkin by telephone (+44 20 7074 8000) or email (colin.leckey@lewissilkin.com or david.hopper@lewissilkin.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.

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