Trade union recognition and limitations

In November 2023, the Supreme Court handed down its judgment in the case of Independent Workers Union of Great Britain v CAC.

The Union had applied to the CAC for recognition for collective bargaining 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 they 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’ under the Trade Union and Labour Relations (Consolidation) Act 1992 should have been looked at in the light of 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 exists where there is an ‘employment relationship’ in the European sense. The Supreme Court had to have regard to the factors set out in the International Labour Organisation Employment Relationship Recommendation, 2006 No 198 in looking at whether the riders were employees - focusing 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. They also confirmed that in any event, the rights protected by Article 11 did not extend to the protection of the right to collective bargaining. The CAC were correct to refuse the application for recognition.