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Deliveroo Riders Do Not Have the Right to Unionise

on Friday, 02 July 2021.

The Court of Appeal has recently held that Deliveroo riders do not have the right to freedom of association under Article 11 of the European Convention on Human Rights (ECHR).

Article 11 provides that “everyone has the right to freedom of peaceful assembly and to freedom of association with others;” however the Court of Appeal has confirmed that, for the Article 11 rights to apply, there must be an employment relationship, and further confirmed that the Deliveroo riders were not in an employment relationship with Deliveroo, but were instead classed as 'self-employed.'

This judgment means that Deliveroo riders are not entitled to unionise and the application made in 2017 by the Independent Workers Union of Great Britain’s ('IWGB')  to the Central Arbitration Committee ('CAC') to be recognised as holding collective bargaining rights for the Deliveroo riders therefore fails.

We previously reported on the initial outcome of that application, and on the failed attempt to challenge the decision in the High Court. On this occasion, the Court of Appeal has refused permission to appeal to the Supreme Court.

The Court of Appeal Decision

The Court of Appeal agreed with the High Court that the Article 11 right to freedom of association should be limited to those in an employment relationship (ie to workers and employees). However, unlike the High Court, it considered that, since the Article 11 right derived from a European convention, the question of whether an employment relationship existed should be determined by reference to European jurisprudence, rather than domestic legislation. It therefore considered the definition of employment relationship set out in the International Labour Organisation 198 and noted that this, like our domestic legislation, provided that a requirement for personal service was needed to satisfy the definition.

It went on to note, as the CAC and High Court had previously noted, that the ‘supplier agreements’, under which Deliveroo riders provided their services gave the riders a largely unfettered right to provide a substitute, without the need for Deliveroo's approval or even knowledge. Although this option was exercised relatively infrequently in practice, there was no evidence to suggest that the right to substitute was not genuine and, as such a right was incompatible with a requirement for personal service, the Court of Appeal concluded that the riders were not in an employment relationship and so the Article 11 right to freedom of association did not apply. 

The Impact on Employers

Whether determining employment status under either domestic or European legislation, and whether for the purposes of trade union recognition or employment rights more generally, the requirement for personal service is an important factor and an unlimited right to substitute will generally lead to a finding that the individual is genuinely self-employed.

This decision may come as a surprise to some following the recent Supreme Court decision that Uber drivers were workers; however that case did not consider the question of personal service as Uber drivers did not have the right to substitute.


If you have any questions on the impact of this judgment, or about employment status more generally, please contact Lorna Scully in our Employment Law team on 0121 227 3719, or complete the form below.

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