Secretary of State for Business and Trade v Mercer
[2024] UKSC 12
Independent Workers Union of Great Britain v Central Arbitration Committee and another
21 November 2023
[2023] UKSC 43
Supreme Court
A union tried to force Deliveroo to negotiate with them on behalf of their riders. The court said the riders weren't 'employees' in the legal sense because they could easily get someone else to do their deliveries. The court also said the government doesn't *have* to make companies negotiate with unions even if it sometimes does.
Key Facts
- •Deliveroo riders in London joined the Independent Workers Union of Great Britain (IWGB) to negotiate better working conditions with Deliveroo.
- •Deliveroo refused to negotiate, leading the IWGB to apply to the Central Arbitration Committee (CAC).
- •The CAC found the riders were not 'workers' under section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), and thus not entitled to collective bargaining under Schedule A1.
- •The IWGB challenged this decision, arguing that excluding riders from collective bargaining rights breached Article 11 of the European Convention on Human Rights (ECHR).
Legal Principles
Article 11 ECHR confers trade union rights, including collective bargaining, but only within the context of an employment relationship.
The Good Shepherd and other Strasbourg Court cases, ILO Recommendation No 198
Determining an employment relationship under Article 11 requires a multifactorial test, focusing on the practical realities of the relationship, considering factors in ILO Recommendation No 198.
The Good Shepherd, ILO Recommendation No 198, UK case law (Autoclenz, Uber, Pimlico Plumbers)
The right to collective bargaining under Article 11 does not extend to compulsory collective bargaining; states have a wide margin of appreciation in this area.
Demir v Turkey, Unite the Union v United Kingdom, and subsequent UK case law.
In UK domestic law, the right to substitute is a key factor in determining worker status. A genuine and unfettered right of substitution generally negates the existence of an employment relationship.
UK case law (Autoclenz, Pimlico Plumbers, Uber)
Outcomes
The appeal was dismissed.
The Riders did not have an employment relationship with Deliveroo for the purposes of Article 11 ECHR because of their virtually unlimited right of substitution, and other factors indicating a lack of subordination. Further, there is no positive obligation under Article 11 to enact legislation for compulsory collective bargaining.
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