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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Independent Workers Union of Great Britain, R (On the Application Of) v Central Arbitration Committee : Re: Deliveroo [2018] EWHC 3342 (Admin) (05 December 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/3342.html Cite as: [2019] IRLR 249, [2018] EWHC 3342 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the application of THE INDEPENDENT WORKERS UNION OF GREAT BRITAIN |
Claimant |
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- and - |
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CENTRAL ARBITRATION COMMITTEE |
Defendant |
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- and - |
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ROOFOODS LIMITED t/a DELIVEROO |
Interested Party |
____________________
(instructed by Harrison Grant Solicitors) for the Claimant
The Defendant was not represented
Christopher Jeans QC and Tom Cross
(instructed by Lewis Silkin LLP) for the Interested Party
Hearing dates: 14-15 November 2018
____________________
Crown Copyright ©
Mr Justice Supperstone :
Introduction
"With some hesitation I have reached a different conclusion in relation to ground 4, which argues that the collective bargaining rights in Art.11 [ECHR] require an interpretation of s.296(1) and the personal performance obligation [that] does not exclude these riders from exercising those rights. The CAC did not engage with this argument because of its factual findings, but arguably the point required to be addressed as a matter of principle, irrespective of the strength of the facts of the particular case. In relation to this ground, therefore, I am persuaded that it merits fuller consideration and have concluded that permission should be granted in relation to ground 4…"
Legislative Framework
"(1) In this Act, worker means an individual who works, or normally works or seeks to work—
(a) under a contract of employment, or
(b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his, or
(c) in employment under or for the purposes of a government department…"
"(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state."
Factual Background
"A. You are a supplier in business on your own account who wishes to arrange the provision of delivery services to Deliveroo subject to the terms and conditions below.
B. You are free to supply the Services either personally or through someone else engaged by you in accordance with clause 8. 'You' should be read as meaning either your personally, or procured by you in relation to any person engaged by you. Should you choose to provide the Services through a third party in this way, you remain responsible for ensuring that the obligations set out in this Agreement are complied with."
"2.1 Deliveroo authorises You to arrange the provision of Services from time to time on the terms set out in this Agreement.
2.3 You are not obliged to do any work for Deliveroo, nor is Deliveroo obliged to make available any work to you. Throughout the term of this Agreement you are free to work for any other party including competitors of Deliveroo.
2.4 It is entirely up to you whether, when and where you log in to perform deliveries, save that it must be in an area in which Deliveroo operates and at a time when that area is open for deliveries.
2.5 While logged into the App, you can decide whether to accept or reject any order offered to you and if you do not wish to receive offers of work at any time, you can use the 'unavailable' status."
"Deliveroo will pay you a delivery fee ('Delivery Fee') for each completed delivery."
"5.1 As strict conditions of this Agreement you warrant upon commencement and continuously throughout the term of this Agreement that:
(a) You have the right to reside and work in the United Kingdom and have all necessary visas, licences and permits allowing you to do so;
(b) You have no unspent convictions for any criminal offence;
(c) You will comply with all other legal obligations (including the Highway Code) which apply to you or the provision of the Services from time to time;
(d) You will ensure that, to allow customers to track the progress of deliveries, Deliveroo is able to track using GPS technology the progress of any delivery which you agree to accept."
"8.1 Deliveroo recognises that there may be circumstances in which you may wish to engage others to provide the Services. Deliveroo is not prescriptive about this and you therefore have the right, without the need to obtain Deliveroo's prior approval, to arrange for another courier to provide the Services (in whole or in part) on your behalf. This can include provision of the Services by others who are employed or engaged directly by you; however, it may not include an individual who has previously had their Supplier Agreement terminated by Deliveroo for a serious or material breach of contract or who (while acting as a substitute, whether for you or a third party) has engaged in conduct which would have provided grounds for such termination had they been a direct party to a Supplier Agreement. If your substitute uses a different vehicle type to you, you must notify Deliveroo in advance.
8.2 It is your responsibility to ensure your substitute(s) have the requisite skills and training, and to procure that they provide the warranties at clause 5 above to you for your benefit and for Deliveroo's benefit. In such event you acknowledge that this will be a private arrangement between you and that individual and you will continue to bear full responsibility for ensuring that all obligations under this Agreement are met. All acts and omissions of the substitute shall be treated as though those acts and/or omissions were your own. You shall be wholly responsible for the payment to or remuneration of any substitute at such rate and under such terms as you may agree with that substitute, subject only to the obligations set out in this Agreement, and the normal invoicing arrangements as set out in this Agreement between you and Deliveroo will continue to apply."
"You may terminate this Agreement with Deliveroo at any time and for any reason on giving Deliveroo immediate notice in writing."
"68. Riders with a CKT Ops Code are paid on a 'fee per delivery' ('FPD') basis, also sometimes known as 'drop fee'. This means that they are paid a fee for each delivery they complete. Riders in CKT are normally paid £3.75 per delivery, however the fee offered to Riders for each delivery varies to some degree depending on demand…
78. A few, if that, Riders use substitutes…
79. Most Riders do not use a substitute…
80. A few Riders do however and one Rider who gave evidence on behalf of Deliveroo, … explained that he regularly engages a substitute by giving a friend his App to download and password details…
82. If a Rider is unable or does not want to complete a job after accepting it and does not want, or is not able to pass it on to a substitute, they have to telephone Rider Support who will arrange for another Rider to take over the job…
83. Some Riders are also signed up with other food delivery organisations such as Uber Eats, and Deliveroo does not object to this - … The Union does not believe that it is a vast majority, but accept a goodly proportion may.
84. Some Riders can and do have several apps open at once, including the Deliveroo App, and take jobs as and when they are offered, from whichever company offers first at the moment they are available. …"
"100. The central and insuperable difficulty for the Union is that we find that the substitution right to be genuine, in the sense that Deliveroo have decided in the New Contract that Riders have a right to substitute themselves both before and after they have accepted a particular job; and we have also heard evidence, that we accepted, of it being operated in practice. Deliveroo was comfortable with it. We did not find the Deliveroo witnesses to be liars. …
101. In light of our central finding on substitution, it cannot be said that the Riders undertake to do personally any work or services for another party. It is fatal to the Union's claim. If a Rider accepts a particular delivery, their undertaking is to either do it themselves in accordance with the contractual standard, or get someone else to do it. They can even abandon the job part way having only to telephone Rider Support to let them know. A Rider will not be penalised by Deliveroo for not personally doing the delivery her or himself, provided the substitute complies with the contractual terms that apply to the Rider.
102. Some Riders do few and intermittent jobs for Deliveroo but many Riders do as much work as possible in so far as they can given any other commitments, and place themselves as close as possible to restaurants so they will be offered work by the Deliveroo algorithm. They rely on it as their main source of income. But that is not the applicable test under s.296 of the Act. The delivery has to be undertaken by a person, however it does not have to be the Rider that personally performs it. Riders are free to substitute at will. We also appreciate the high level of trust required in the substitute by the Rider… But that does not make the substitution provisions a sham. The factual situation in this case is very different from, for example, that of Uber private hire drivers, or Excel or City Sprint.
104. Mr Hendy made a secondary submission pursuant to Article 11 ECHR and s.3 Human Rights Act 1996. However on the specific facts of this case and the unfettered and genuine right of substitution that operates both in the written contract and in practice, the argument does not succeed. In a less clear-cut case the position might have been different."
The Ground of Challenge
"Ground 4: the CAC erred in failing to address the Union's arguments in respect of Article 11.
27. The right to bargain collectively is an essential element of Article 11 of the European Convention on Human Rights (see Demir and Baykara v Turkey [2009] 48 EHRR 54). The UK legislation should be construed so as to give effect to that right (R (Boots Management Services Ltd) v CAC [2017] IRLR 355; and London Borough Wandsworth v Secretary of State for Business, Innovation and Skills [2017] EWCA Civ 1092. In the instant case that meant that the requirement of 'personal service' should be interpreted in a way which did not exclude these workers from exercising their right.
28. At paragraph 104 of the Decision, the CAC erred in dismissing this argument without engaging with it or providing reasons in circumstances where the Union had made detailed submissions on the point, which were contained at paragraphs 19-22 of its closing submissions and in Appendix 1 attached thereto."
i) whether Article 11(1) is engaged (Issue 1);
ii) if so, whether any interference with the Riders' Article 11(1) rights is justified by Article 11(2) (Issue 2);
iii) if the Riders' Article 11 rights have been breached, whether the CAC should have "read-down" s.296(1) (Issue 3);
iv) whether the CAC failed to address the Union's arguments in respect of Article 11 (Issue 4).
The Submissions of the Parties and Discussion
Issue 1: whether Article 11(1) is engaged
"the statutory requirement of personal service is express and both the Court of Appeal and now the Supreme Court in Pimlico Plumbers have confirmed that the contractual obligation of personal service may be defeated by a substitution clause that is inconsistent with such an obligation, and will be defeated by a generalised right of substitution."
"…the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration, the legal characterisation under national law and the form of that relationship, as well as the nature of the legal relationship between those two persons, not being decisive in that regard."
"… the Court considers that the restrictions imposed on the three groups mentioned in Article 11 are to be construed strictly and should therefore be confined to the 'exercise' of the rights in question. These restrictions must not impair the very essence of the right to organise…"
"Consequently, the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of contracting states in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the 'right to form and to join trade unions for the protection of [one's] interests' set forth in Article 11 of the Convention, it being understood that states remain free to organise their system so as, if appropriate, to grant special status to representative trade unions. Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any 'lawful restrictions' that may have to be imposed on 'members of the administration of the state' within the meaning of Article 11(2)—a category to which the applicants in the present case do not, however, belong."
"Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation."
"In my view… the reasoning in the Unite case acknowledges the possibility that the absence or inadequacy of a statutory mechanism for compulsory collective bargaining might in particular circumstances give rise to a breach of Article 11. Such a reading is consistent with the logic of the reasoning in Demir itself… It is fair to say that various observations by the Court, and indeed the outcome of the case itself, tend to suggest that complaints based on the denial of a right to compel an employer to engage in collective bargaining may face an uphill struggle; but the point at this stage is simply that the attempt is not excluded in limine."
Underhill LJ continued at paragraph 54:
"… It follows from the recognition by the Court in Demir that 'the right to bargain collectively with the employer' is an 'essential element' of the rights protected by Article 11 that a complaint that domestic law does not accord such a right in a particular case will fall within the scope of Article 11. But, at the risk of spelling out the obvious, it does not follow from that that Article 11 confers a universal right on any trade union to be recognised in all circumstances. It is self-evident that any right to be recognised conferred by domestic law will have to be defined by rules which identify which unions should be recognised by which employers in respect of which workers and for what purposes…"
"If, accordingly, the rights in question fall within the scope of article 11, the United Kingdom is under a positive obligation to secure the effective enjoyment of those rights. That does not mean that it is under an obligation to ensure that they are available to all employees in all circumstances, but it does mean that where a legislative scheme is in place it must strike a fair balance between the competing interests and any provision of that scheme which restricts its availability to particular classes of workers requires to be justified, albeit that the state is recognised to have a wide margin of appreciation. The relevant principles are discussed at paras 33-47 and 54-55 in the judgment of Underhill LJ in [Boots]… on the basis of Demir and the later European Court of Human Rights decision in Unite The Union v United Kingdom…"
"…the right to bargain collectively with the employer has, in principle, become one of the essential elements of the 'right to form and to join trade unions for the protection of [one's] interests' set forth in Article 11 of the Convention… Like other workers, civil servants, except in very specific cases, should enjoy such rights…"
"… since the decision of the European Court of Human Rights in Demir…it has been established that 'the right to bargain collectively with the employer has, in principle, become one of the essential elements' of the rights afforded by article 11, and that those rights are enjoyed by employees of public authorities as well as by employees in the private sector (subject to article 11(2))…"
"The only question arising here is whether such duties, notwithstanding any special features they may entail, amount to an employment relationship rendering applicable the right to form a trade union within the meaning of Article 11."
The judgment continues:
"142. In addressing this question, the Grand Chamber will apply the criteria laid down in the relevant international instruments (see, mutatis mutandis, Demir and Baykara)… In this connection, it notes that in Recommendation no.198 concerning the employment relationship…, the International Labour Organisation considers that the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties. In addition the ILO's Convention no.87… which is the principal international legal instrument guaranteeing the right to organise, provides in Article 2 that 'workers and employers, without distinction whatsoever' have the right to establish organisations of their own choosing. …
143. Having regard to the above considerations, the Court observes that the duties performed by the members of the trade union in question entail many of the characteristic features of an employment relationship.
…
148. Having regard to all the above factors, the Court considers that, notwithstanding their special circumstances, members of the clergy fulfil their mission in the context of an employment relationship falling within the scope of Article 11 of the Convention. Article 11 is therefore applicable to the facts of the case."
"If the existence or otherwise of a Convention right is unclear, then it may be appropriate for domestic courts to make up their minds whether the Convention rights should or should not be understood to embrace it."
That is not the present case. The Convention right is clear from the Strasbourg jurisprudence.
Conclusion
Issue 2: whether any interference with the Riders' Article 11(1) rights is justified by Article 11(2)
"…the social and political issues involved in achieving a proper balance between the interests of labour and management are of a sensitive nature. The starting point is, therefore, that the United Kingdom enjoys a wide margin of appreciation in determining whether a fair balance has been struck between the protection of the public interest in the abolition of the [Agricultural Wages Board] and the applicant's competing rights under Article 11 of the Convention."
Issue 3: whether the CAC should have "read-down" s.296(1)
"30. … The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3.
31. … once it is accepted that section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear, it becomes impossible to suppose Parliament intended that the operation of section 3 should depend critically upon the particular form of words adopted by the parliamentary draftsman in the statutory provision under consideration…
33. Parliament, however, cannot have intended that in the discharge of this extended interpretive function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend, Lord Rodger of Earlsferry, 'go with the grain of the legislation'…"
"From 1970 onwards Parliament has taken the view that, while only employees under a contract of service should have full statutory protection against various forms of abuse by employers of their stronger economic position in the relationship, there were self-employed people whose services were so largely encompassed within the business of others that they should also have limited protection, in particular against discrimination but also against certain forms of exploitation on the part of those others; and for that purpose Parliament has borrowed and developed the extended definition of a 'workman' first adopted in 1875."
"The phrase in s.296(1) of the 1992 Act, 'normally work', cannot be isolated in the way the claimant seeks to isolate it. It must be read in the context of the section as a whole. The focus of the provision is on the contract under which the work is done and not simply on whether the work is done or the way it is done. To qualify on a plain reading of s.296(1)(b) the contract under which Riders 'normally work' must be a contract by which they promise (or undertake) to do the work personally. In other words, the focus is on what the contract requires and whether it requires personal service. If, as the CAC found, the contract does not oblige the Rider to work personally, it is irrelevant as a matter of construction of s.296(1) whether he normally uses a substitute or not."
Issue 4: whether the CAC failed to address the Union's arguments in respect of Article 11
Conclusion