Are you an employee, a worker, or neither? The answer to that question could not be more important as it defines the rights you may or may not have. The Supreme Court tackled the issue in a case concerning food delivery riders, a trade union and collective bargaining rights.
A trade union representing the riders made a formal request to the delivery company to be recognised for collective bargaining purposes. After the company refused, the union complained to the Central Arbitration Committee (CAC), a quasi-judicial body which has the power to order an employer to recognise a union and to engage in collective bargaining, provided that certain conditions are met.
One of those conditions is that those whom the union seeks to represent must be ‘workers’, as defined by Section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992. After analysing the relationship between the riders and the company, the CAC found that they did not meet that definition.
The CAC further rejected arguments that the refusal to recognise the union breached the riders’ rights, under Article 11 of the European Convention on Human Rights, to freedom of assembly and association and to engage in trade union activities. The CAC’s decision was subsequently upheld by the High Court and the Court of Appeal. In challenging that outcome, the union contended that the definition of ‘worker’ in the Act should be interpreted, or read down, so as to include the riders in order to comply with their rights under Article 11.
Dismissing the appeal, however, the Supreme Court found that the riders were not in an employment relationship with the company for the purposes of Article 11. The European Court of Human Rights had made clear that the right to form and join a trade union only arises if such a relationship exists. The provisions of Article 11 which protect trade union activities therefore did not apply to the riders.
The Court noted that the concept of an employment relationship for the purposes of Article 11 is freestanding and does not depend on the definition of a worker or an employee in domestic law. The CAC subjected the contracts between the riders and the company to close scrutiny and found that they genuinely reflected the reality of their relationship. On that basis, it was entitled to conclude that there was no employment relationship.
The riders, the Court observed, had an almost unfettered right to appoint substitutes to take on their jobs. That, on the face of it, was entirely inconsistent with there being an employment relationship. They were not sanctioned for making substitutions and the company did not terminate their contracts for failing to accept work. They were free to work, or not, at their own convenience and the company did not object to them working simultaneously for its competitors.