Hello and welcome back to your weekly case law update. Due to the PJH Law Christmas shutdown starting Friday 21st December, this is your final case law update of 2018 (cheer/gasp/cry delete as appropriate).

Last week we veered away from employment law to look at a peculiar and tragic personal injury case following a poorly handled grievance investigation. This week we are looking at human rights, union recognition and employment status.

Before starting this week’s case, we’d like to thank everyone for their support and feedback following the release of Phil’s book, A Practical Guide to Redundancy. For those still interested in purchasing a copy, or, getting their secret santa a really useful/tenuous gift, information about where you can buy the book and the offers available can be found here.

We previously covered this week’s case in the first instance and reported when the appeal on human rights grounds was lodged. The human rights point of law was whether Deliveroo couriers, who were hired and did not have to perform work personally, had the right to assembly (form trade unions) under Article 11 of European Convention on Human Rights.

The question this week is:

Do Deliveroo couriers have the right to form trade unions under Article 11 ECHR if they do not have a contractual right?

For those who don’t know what the CAC is, it’s the Central Arbitration Committee which rules on claims brought by trade unions over recognition, bargaining units, collective bargaining and information required for collective bargaining. Philip is the only member of the team who has defended a case before the CAC which involved a request by the Trade Union for the employer to hand over certain information required for collective bargaining purposes.

The facts of this case have been covered previously. In short, Deliveroo couriers were held by the Central Arbitration Committee to be ineligible for trade union recognition because they were held to be self-employed contractors. Unlike other cases involving employment status, the CAC held that because there was a nominal substitution clause in the courier contract, the couriers did not have to perform work personally and were thus self-employed.

The IWGB, the union representing the couriers, sought a judicial review as to whether the couriers had a right to form trade unions under Article 11 of the ECHR. The High Court, who heard the review, dismissed the appeal. They held that Article 11 was not engaged because the couriers were self-employed and thus were not entitled to union representation.

The takeaway point:

A fairly succinct case this week states that self-employed people don’t have the right to join trade unions. What is more interesting here is how the CAC’s interpretation of employment and the ET/EATs definition of employment is different.

This is partly due to different statutory definitions but also the different role played by the CAC. A CAC hearing may be chaired by an Academic or person with substantial industrial relations experience, when Philip went to the CAC from memory it was chaired by a Professor in Industrial Relations.

As such, a nominal contractual right to substitute, even one that is not used in practice due to the nature of how the contract is performed, could mean someone is self-employed for the purposes of union recognition according to the CAC. However, the ET might find that the way the contract is performed means there is no real right to substitution and thus the couriers might be workers/employees.