15 November 2018

In a two-day High Court hearing ending today, John Hendy QC has made the argument that workers in the gig economy have a human right to collective bargaining under Article 11 of the European Convention on Human Rights (ECHR).

The case is a judicial review brought by the Independent Workers Union of Great Britain (IGWB) on behalf of Deliveroo riders, and its objective is to examine the legality of last year's Central Arbitration Committee (CAC) judgment that Deliveroo riders cannot form a collective bargaining unit because the CAC found them to be 'self-employed' rather than 'workers'.

According to a report by the Independent, Hendy pointed out that the right to collective bargaining is "conferred on all workers and their trade unions", with a limited number of exceptions, such as the police and armed forces. In light of this, he questioned "whether domestic law can be read in a way which prevents what appears to be a violation" of the right to collective bargaining.

The CAC had made its determination of the riders' employment status based on a substitution clause in their contracts, which allows them to delegate their workload to another person, but Hendy argued there is no reason this should "preclude" them from collective bargaining.

The ECHR, he argued, should be read in such as way "so as to conclude that the right to bargain collectively is, indeed, that of 'everyone' with no exemption being permitted for the self-employed".

"Deliveroo refuses to bargain collectively with this or any other union on behalf of its riders," the Independent quoted him as saying. "Deliveroo is adamant that it, and it alone, will determine the terms and conditions without any input from its riders and on a take it or leave it basis."

Christopher Jeans, QC, representing Deliveroo, countered that providing riders with the right to collective bargaining would interfere with "the protection of the rights and freedoms of others", including "freedom of business and freedom to contract on terms the business chooses to offer ... [and] freedom from the imposition, including the consequences, of bargaining arrangements".

Although Hendy agreed that restrictions to ECHR rights can be justified in order to preserve the rights of others, he said that in this case, "plainly, the impact of the restriction is disproportionate to any perceptible benefit".

The IWGB said the outcome of the case, heard by Mr Justice Supperstone, could have significant consequences for the way collective bargaining rights are interpreted for people in insecure work.

"At stake in this case is not just the basic employment rights of Deliveroo riders, but their fundamental human rights to organise within a trade union and collectively bargain to improve their lot," General Secretary of the union, Dr Jason Moyer-Lee said.

"By fighting this case as vigorously as it has, Deliveroo has shown its true colours," he added.