Independent Workers Union of Great Britain v Central Arbitration Committee & Anor

Factual and Procedural Background

“Company A” operates an online platform through which food is delivered by individuals known in these proceedings as “the Riders.” A significant number of Riders working in a London zone joined the “Appellant,” an independent trade union, and asked Company A to recognise the Appellant for collective bargaining. Company A refused. On 28 November 2016 the Appellant applied to “Agency A” (the statutory body empowered to impose recognition under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992).

Agency A decided on 14 November 2017 that the Riders were not “workers” within section 296 TULRCA because they enjoyed a genuine and extensive right of substitution. It also rejected the Appellant’s alternative contention that excluding the Riders from Schedule A1 breached Article 11 of the European Convention on Human Rights (ECHR).

The Appellant sought judicial review. Judge Simler granted permission only on the Article 11 ground and later dismissed the claim. Judge Supperstone dismissed the substantive application; the Court of Appeal (Judge Underhill, Judge Coulson, Judge Phillips) upheld that result. The present appeal was heard by Judge Lloyd-Jones, Judge Rose, Judge Briggs, Judge Stephens and Judge Richards, with Company A and the Secretary of State intervening.

Legal Issues Presented

1. Whether the Riders fall within the class of persons protected by Article 11 ECHR (“Article 11 workers”).
2. If they are Article 11 workers, whether Article 11 confers a right compelling the United Kingdom to require Company A to engage in collective bargaining, either generally or where some workers already enjoy that statutory right.
3. If such a right exists, whether excluding the Riders from Schedule A1 by reason of the section 296 definition violates Article 11 or is justified under Article 11(2).
4. If a violation is found, whether section 296 can be read down under section 3 of the Human Rights Act 1998 to include the Riders.

Arguments of the Parties

Appellant's Arguments

• The Riders, despite being outside the domestic definition of “worker,” are “Article 11 workers” because they perform services in a relationship of economic subordination.
• Article 11 now includes a positive right to compulsory collective bargaining following Strasbourg jurisprudence (Demir v Turkey; Unite the Union v UK).
• Alternatively, once a State confers compulsory bargaining on some Article 11 workers (via Schedule A1) it must extend it to all, absent lawful justification under Article 11(2).
• Section 296 should therefore be read down to encompass the Riders, eliminating the incompatibility.

Company A's Arguments

• The Riders are not Article 11 workers because the genuine, unrestricted substitution right negates any obligation of personal service—an essential element of an “employment relationship” under Strasbourg case-law (The Good Shepherd).
• Article 11 does not oblige States to legislate for compulsory collective bargaining; Unite the Union confirms only a wide margin of appreciation.
• Even if Article 11 were engaged, the exclusion of those who are not section 296 “workers” is justified and proportionate.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Are the Riders Article 11 workers? The Court adopted a multi-factor test derived from ILO Recommendation 198 (incorporated through The Good Shepherd). An obligation of personal service is a critical indicator. The Riders possessed a “virtually unfettered” contractual and practical right to substitute at any time, before or after accepting a job, without sanction from Company A. Agency A had scrutinised the reality of the relationship and found the substitution power genuine, not a sham. Additional factors—no obligation to work, freedom to work for competitors, provision of own equipment, pay only per completed delivery, absence of benefits—reinforced the absence of an employment relationship. Consequently, the Riders are not Article 11 workers.

2. Scope of Article 11 collective-bargaining rights. Even if the Riders were Article 11 workers, Strasbourg jurisprudence does not impose a positive duty on States to compel employers to bargain. The high-water mark, Demir, recognised collective bargaining as important but did not mandate compulsory bargaining. Unite the Union confirmed the wide margin of appreciation and rejected an argument analogous to the Appellant’s. Domestic cases (Boots, Vining, IWUGB) were based on an interpretation of Unite the Union that the present Court now disapproves.

3. Alternative “partial extension” argument. The Appellant’s claim that, because Schedule A1 confers compulsory bargaining on some workers, it must be extended to all Article 11 workers was rejected. The analogy with discrimination law (Article 14) was inapposite; Article 11 requires proof of a substantive breach, not merely being outside the ambit.

4. Issues 3 & 4. Given the conclusions on Issues 1 and 2, the Court found it unnecessary to address justification under Article 11(2) or the possibility of reading down section 296.

Holding and Implications

APPEAL DISMISSED.

Company A is not obliged to enter into compulsory collective bargaining with the Appellant because the Riders are outside the category of persons protected by Article 11 trade-union rights. The definition of “worker” in section 296 TULRCA remains unaltered. The judgment clarifies that, under current Strasbourg authority, Article 11 does not compel States to legislate for compulsory collective bargaining, and prior domestic interpretations extending that right were disapproved. No new precedent was set regarding statutory worker status, but the decision narrows the domestic reach of Article 11 arguments in collective-bargaining disputes.