Are Deliveroo riders, as independent contractors, able to seek compulsory Union recognition as if they were 'workers', by applying the right of association under Article 11 of the ECHR?
No, held the Court of Appeal, in The Independent Workers Union of Great Britain v The Central Arbitration Committee. However, the court noted that other cases with similar facts might be decided differently.
The CAC held that Deliveroo riders were independent contractors, with the right of substitution. Whilst for workers, the right to collectively bargain (and seek recognition) is part of Article 11 rights, this particular right did not extend to independent contractors. IWGB took a judicial review to the High Court, where it lost, and then on to the Court of Appeal, again unsuccessfully.
Whilst in employment situations Article 11 had to be applied to give effect to union recognition, in a non-employment context, such as Deliveroo riders, the protection was not so extensive. The riders still had the right to associate, and could join unions, but there is a distinction between the right to organise generally and the right to organise as a trade union, which the self-employed need not have under Human Rights law. There is a margin of appreciation for the UK government in applying Convention rights and the right to compulsory recognition did not need be extended to independent contractors on these facts.
Because of the particular history of the case, the Court of Appeal only had a narrow issue to deal with, it noted that there was scope on similar facts for a different decision so this might well not be the last word on this point at this level.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.