In the latest development regarding “worker status” and the “gig economy”, and applying this week’s earlier Supreme Court decision in Pimlico Plumbers, the High Court has rejected the Independent Workers of Great Britain trade union application for a judicial review of the Central Arbitration Committee’s decision that Deliveroo riders are not “workers” based on the terms of Deliveroo’s “substitution clause”.
The High Court has today applied what the Supreme Court held in Pimlico Plumbers to be the “sole test” of whether there is an “obligation of personal performance”. It noted that the Central Arbitration Committee had been properly sceptical of the concept of Deliveroo’s “substitution clause” given that it meant that riders were under no obligation to work at all and had no obligation to perform work personally even after they had accepted an order.
The High Court held that the contractual clause upon which Deliveroo relied can be clearly distinguished from that in Pimlico Plumbers. Unlike in Pimlico Plumbers, Deliveroo’s substitution clause is expressly detailed in riders’ contracts, it is prominently drawn to their attention and it is operated in practice, including during deliveries. These findings of fact meant that the Central Arbitration Committee had been entitled as a matter of law to find that riders are not “workers” within the relevant statutory definition.
The High Court did, however, grant permission for a judicial review in due course based on one of the five grounds of appeal advanced by the IWGB. This ground is that the Central Arbitration Committee failed properly to engage with submissions made by the IWGB that the definition of a “worker” in the Trade Union and Labour Relations (Consolidation) Act 1992 in the context of an application for trade union recognition must be interpreted in a manner compatible with Article 11 of the European Convention on Human Rights on trade union rights.
The High Court granted permission for a judicial review on this limited basis “with some hesitation”. It also refused the IWGB’s application for costs protection, noting that this ground of appeal does not raise issues of general public importance as the nature of “worker status” cases is that they are all highly fact-specific. It accordingly noted that this appeal would not be a matter of common interest to the wider so-called “gig economy”.