"In this Act 'worker' means an individual who works, or normally works or seeks to work – (a) under a contract of employment, or (b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his, or (c) in employment under or for the purposes of a government department (otherwise than as a member of the naval, military or air forces of the Crown) in so far as such employment does not fall within paragraph (a) or (b) above."
"Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance."
" Freedom of assembly and association 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state."
"The parties agreed that the Panel should consider the question of worker status by reference to the New Contract and not the Earlier Contract."
"What happened previously is of historic interest only, and little assistance in understanding the current situation."
"2.3 You are not obliged to do any work for Deliveroo, nor is Deliveroo obliged to make any available any work to you. Throughout the term of this Agreement you are free to work for any other party including competitors of Deliveroo. 2.4 It is entirely up to you whether, when and where you log in to perform deliveries, save that it must be in an area in which Deliveroo operates and at a time when that area is open for deliveries. 2.5 While logged into the App, you can decide whether to accept or reject any order offered to you and if you do not wish to receive offers of work at any time, you can use the 'unavailable' status."
"76. There is no policing by Deliveroo of a Rider's use of a substitute should s/he choose to use one. Deliveroo simply relies on the contractual terms with the Rider. In practice substitution is rare as there is no need for a Rider to engage a substitute. If the Rider does not want to accept a job or be available for work, s/he need not log on to the App, or if they are logged on, they do not need to make themselves available, and if they are logged on and mark themselves as available they are not under any obligation to accept any jobs offered. There are no adverse consequences for them. 77. We have set out above the termination provisions that enable Deliveroo to terminate the Rider's contract for any reason at all with one week's notice. Deliveroo does not terminate FPD contracts for not accepting a certain percentage of orders or for Riders not making themselves sufficiently available, although the position is different for hourly paid Riders. FPD Riders are vulnerable to having their contracts terminated on one week's notice if their, or their substitute's, delivery times over a sustained period are deemed too slow. 78. A few, if that, Riders use substitutes. In a survey of Riders with CKT Ops codes in April/May 2017 conducted by Deliveroo 14 of the 65 Riders who answered the question had either themselves used a substitute or knew of other Riders who did. A Rider might, for example, allow a friend (who is not a Rider) to use their App while they are on holiday, and since Deliveroo is not currently taking on new Riders in CKT, the friend would not otherwise be able to do so. All that is required is for either the substitute to download the App onto her or his own phone or the Rider lend their device to their substitute. Either way, the substitute would need to be privy to the Rider's Deliveroo password. The confidentiality clause in the New Agreement provides for the substitute to be told the password, but the Rider is responsible for the substitute maintaining confidence. The Rider is paid for any deliveries made by the substitute, and Deliveroo will not be aware of the identity of the substitute, or the fact that one has been used on any particular occasion. How and if the substitute is remunerated by the Rider is between the Rider and the substitute. 79. Most Riders do not use a substitute – if they do not want to do Deliveroo deliveries they do not log onto the App and do not wish to sub-contract the opportunity or be responsible for anyone else. We have set out above the provisions in the New Contract that make the Rider entirely responsible for the substitute, including insuring them and the Rider has to trust the substitute with her or his Deliveroo passwords. The vast majority of Riders see no point in engaging a substitute."
"93. It was common ground between the parties that whether a person undertakes personally to perform work or services depends 'entirely on the contract between them' ( Pimlico Plumbers v Smith[2017] IRLR 323 , para 73) and that 'the essential question in each case is what were the terms of the agreement' ( Autoclenz v Belcher[2011] ICR 1157 para 20). 94. The Supreme Court judgment in Autoclenz v Belcher sets out the proper approach to the construction of contracts such as here, which relate to work or services as opposed to commercial contracts between parties of equal bargaining power. The task is to find the true agreement or the actual legal obligations of the parties – not to be confused with the true intentions or expectations of the parties, but what was agreed. It is for this reason that the question of whether Deliveroo's true purpose in constructing the contracts as they did was to avoid their Riders gaining worker status is not relevant, the proper question is what was actually achieved. 95. It is important to spot the difference between form and substance – the oft quoted dicta of Elias LJ [ sic ] in Kalwak v Consistent Group Ltd[2007] IRLR 560 : 'The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligations to accept or provide work in employment contracts, as a matter of form, even where such terms do not being to reflect the real relationship.' 96. It follows that all the relevant evidence has to be examined as set out by Smith LJ [sc. in Autoclenz in the Court of Appeal], as approved and endorsed in Autoclenz : 'To carry out [the exercise of discovering the actual legal obligations of the parties] the tribunal will have to examine all the relevant evidence. That will, of course, include the written term itself, read in the context of the whole agreement. It will also include evidence of how the parties conducted themselves in practice and what their expectations of each other were. Evidence of how the parties conducted themselves in practice may be so persuasive that the tribunal can draw an inference that that practice reflects the true obligations of the parties. But the mere fact that the parties conducted themselves in a particular way does not of itself mean that the conduct accurately reflects the legal rights and obligations. For example, there could well be a legal right to provide a substitute worker and the fact that that right was never exercised in practice does not mean that it was not a genuine right.'"
"100. The central and insuperable difficulty for the Union is that we find that the substitution right to be genuine, in the sense that Deliveroo have decided in the New Contract that Riders have a right to substitute themselves both before and after they have accepted a particular job; and we have also heard evidence, that we accepted, of it being operated in practice. Deliveroo was comfortable with it. We did not find the Deliveroo witnesses to be liars. One answer to the substitution conundrum was given by Mr Munir when he eventually explained that he was engaged in subcontracting for a 15-20% cut. 101. In light of our central finding on substitution, it cannot be said that the Riders undertake to do personally any work or services for another party. It is fatal to the Union's claim. If a Rider accepts a particular delivery, their undertaking is to either do it themselves in accordance with the contractual standard, or get someone else to do it. They can even abandon the job part way having only to telephone Rider Support to let them know. A Rider will not be penalised by Deliveroo for not personally doing the delivery her or himself, provided the substitute complies with the contractual terms that apply to the Rider."
"Mr Hendy made a secondary submission pursuant toArticle 11 ECHR ands 3 Human Rights Act 1998 . However on the specific facts of this case and the unfettered and genuine right of substitution that operates both in the written contract and in practice, the argument does not succeed. In a less clear cut case the position might have been different."
" The CAC erred in failing to address the Union's arguments in respect of article 11 The right to bargain collectively is an essential element ofarticle 11 of the European Convention on Human Rights (see Demir and Baykara v Turkey [2009- 48 EHRR 54 ). The UK legislation should be construed so as to give effect to that right ( R (Boots Management Services Ltd) v CAC[2017] IRLR 355 ; and London Borough of Wandsworth v Secretary of State for Business, Innovation and Skills[2017] EWCA Civ 1092 ). In the instant case that meant that the requirement of personal service should be interpreted in a way which did not exclude these workers from exercising their right. At paragraph 104 of the Decision, the CAC erred in dismissing this argument without engaging with it or providing reasons in circumstances where the union had made detailed submissions on the point, which were contained at paragraphs 19-22 of its closing submissions and in Appendix 1 attached thereto."
"… [I]t is clear that the CAC conducted a careful examination of the evidence from a position of being properly sceptical, recognising the problem identified by Elias J … of 'armies of lawyers' creating a substitution clause to alter the true substance of the relationship."
"With some hesitation I have reached a different conclusion in relation to ground 4, which argues that the collective bargaining rights in art 11 require an interpretation of s 296 (1) and the personal performance obligation that does not exclude these riders from exercising those rights. The CAC did not engage with this argument because of its factual findings, but arguably the point required to be addressed as a matter of principle, irrespective of the strength of the facts of the particular case."
"i) whether Article 11 (1) is engaged ( Issue 1 ); ii) if so, whether any interference with the Riders' Article 11 (1) rights is justified by Article 11 (2) ( Issue 2 ); iii) if the Riders' Article 11 rights have been breached, whether the CAC should have 'read-down' s. 296 (1) ( Issue 3 ); iv) whether the CAC failed to address the Union's arguments in respect of Article 11 ( Issue 4 )."
"(1) The Judge was in error in holding thatArticle 11 of the ECHR was not engaged because the Riders did not have Article 11 rights; (2) The Judge was in error in concluding that, if Article 11 was engaged and the Riders did have Article 11 rights, the restriction on those rights (by the exclusion of those who, on a domestic construction, had substitution rights which precluded them from the definition of 'personal service' in s. 296) was justified in accordance with Article 11 (2); (3) The judge was in error in concluding that, if Article 11 was engaged and that restriction was unjustified by reference to Article 11 (2), s. 296 could not be read down in a s. 3 HRA compliant manner."
"… the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties". (3) At paras. 143-148 it makes its own assessment of "the facts relating to the performance of work and the remuneration of the worker", concluding at para. 148: "
"to exclude farmers from the scope ofArticle 11 of the Convention would be to deprive a large number of persons of the possibility of collectively defending, by means of trade unions, their professional interests"
"Although the Convention does not precisely define the concept of 'trade union' beyond a general indication that it is an association formed for the purpose of defending the interests of its members, most of the cases considered by the Court have concerned employees and, more broadly, persons in an 'employment relationship' (see Sindicatul 'Păstorul cel Bun' , cited above, §142)."
"The Court reiterates that Article 11.2 of the Convention does not exclude any occupational group from the right of association secured under that article (see Sindicatul 'Pastorul Cel Bun' v Romania … para. 145). In the present case, insofar as the applicants were refused the right to be registered as a trade union-type association, the Court considers that there was an interference by the respondent State with the exercise of the rights guaranteed byArticle 11 of the Convention ."
"9. For the purposes of the national policy of protection for workers in an employment relationship, the determination of the existence of such a relationship should be guided primarily by the facts relating to the performance of work and the remuneration of the worker, notwithstanding how the relationship is characterized in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties. 10. Members should promote clear methods for guiding workers and employers as to the determination of the existence of an employment relationship. 11. For the purpose of facilitating the determination of the existence of an employment relationship, Members should, within the framework of the national policy referred to in this Recommendation, consider the possibility of the following: (a) allowing a broad range of means for determining the existence of an employment relationship; (b) providing for a legal presumption that an employment relationship exists where one or more relevant indicators is present; and (c) determining, following prior consultations with the most representative organizations of employers and workers, that workers with certain characteristics, in general or in a particular sector, must be deemed to be either employed or self-employed. 12. For the purposes of the national policy referred to in this Recommendation, Members may consider clearly defining the conditions applied for determining the existence of an employment relationship, for example, subordination or dependence. 13. Members should consider the possibility of defining in their laws and regulations, or by other means, specific indicators of the existence of an employment relationship. Those indicators might include: (a) the fact that the work: is carried out according to the instructions and under the control of another party; involves the integration of the worker in the organization of the enterprise; is performed solely or mainly for the benefit of another person; must be carried out personally by the worker [emphasis supplied]; is carried out within specific working hours or at a workplace specified or agreed by the party requesting the work; is of a particular duration and has a certain continuity; requires the worker's availability; or involves the provision of tools, materials and machinery by the party requesting the work; (b) periodic payment of remuneration to the worker; the fact that such remuneration constitutes the worker's sole or principal source of income; provision of payment in kind, such as food, lodging or transport; recognition of entitlements such as weekly rest and annual holidays; payment by the party requesting the work for travel undertaken by the worker in order to carry out the work; or absence of financial risk for the worker."
"B was a parcel delivery courier who carried on his business exclusively for Yodel, a parcel delivery undertaking. Yodel's couriers were engaged under a services agreement which stipulated that they were 'self-employed independent contractors'. Under that agreement, they could appoint a subcontractor or a substitute and were free to deliver parcels for third parties. Couriers were not required to accept any parcel for delivery and could fix a maximum number of parcels which they were willing to deliver. The parcels had to be delivered between 7.30 and 21.00, but the couriers could usually decide the time of delivery and the appropriate order and route. B claimed that he was a 'worker' for the purposes of the Working Time Directive 2003/88. He considered that, although he was self-employed for tax purposes and accounted for his own business expenses, he was an employee of Yodel. An employment tribunal referred questions to the CJEU on whether he was a 'worker'. The tribunal stated that the fact that the couriers had the possibility of subcontracting precluded their classification as a 'worker' under domestic law. Further, it noted that the fact that the couriers were not required to provide their services exclusively to Yodel meant that they had to be classified domestically as 'self-employed independent contractors'. It had doubts as to the compatibility of the provisions of that domestic law, as interpreted by the UK courts, with EU law."
"the national court must, in order to determine to what extent a person carries on his activities under the direction of another, base that classification on objective criteria and make an overall assessment of all the circumstances of the case brought before it, having regard both to the nature of the activities concerned and the relationship of the parties involved"; and, at para. 28, that "since an employment relationship implies the existence of a hierarchical relationship between the worker and his employer, the issue whether such a relationship exists must, in each particular case, be assessed on the basis of all the factors and circumstances characterising the relationship between the parties"
"30. … [T]he Court has held that the classification of an 'independent contractor' under national law does not prevent that person being classified as an employee, within the meaning of EU law, if his independence is merely notional, thereby disguising an employment relationship ( FNV Kunsten Informatie en Media v Staat der Nederlanden , C-413/13, para 35 and the case-law cited). 31. That is the case of a person who, although hired as an independent service provider under national law, for tax, administrative or organisational reasons, acts under the direction of his employer as regards, in particular, his freedom to choose the time, place and content of his work, does not share in the employer's commercial risks and, for the duration of that relationship, forms an integral part of that employer's undertaking, so forming an economic unit with that undertaking ([ Kunsten ], para 36 and the case-law cited). 32. On the other hand, more leeway in terms of choice of the type of work and tasks to be executed, of the manner in which that work or those tasks are to be performed, and of the time and place of work, and more freedom in the recruitment of his own staff are the features which are typically associated with the functions of an independent service provider ( Haralambidis v Casilli , C-270/13, para 33)."
"35. It follows from the specific features of the file submitted to the Court that a person, such as B, appears to have a great deal of latitude in relation to his putative employer. 36. In those circumstances, it is necessary to examine the consequences of that great deal of latitude on the independence of such a person and, in particular, whether, despite the discretion, referred to by the referring court, afforded to that person, his independence is merely notional. 37. In addition, it must be ascertained whether it is possible to establish, in the circumstances specific to the case in the main proceedings, the existence of a subordinate relationship between B and Yodel. 38. In that regard, concerning, first, the discretion of a person, such as B, to appoint subcontractors or substitutes to carry out the tasks at issue, it is common ground that the exercise of that discretion is subject only to the condition that the subcontractor or substitute concerned has basic skills and qualifications equivalent to the person with whom the putative employer has concluded a services agreement, such as the person at issue in the main proceedings. 39. Thus, the putative employer can exercise only limited control over the choice of subcontractor or substitute by that person, on the basis of a purely objective criterion, and cannot give precedence to any personal choices and preferences. 40. Second, it is apparent from the file submitted to the Court that, under the services agreement at issue in the main proceedings, B has an absolute right not to accept the tasks assigned to him. In addition, he may himself set a binding limit on the number of tasks which he is prepared to perform. 41. Third, as regards the discretion of a person, such as B, to provide similar services to third parties, it appears that that discretion may be exercised for the benefit of any third party, including for the benefit of direct competitors of his putative employer, it being understood that that discretion may be exercised in parallel and simultaneously for the benefit of a number of third parties. 42. Fourth, as regards 'working' time, while it is true that a service, such as that at issue in the main proceedings, must be provided during specific time slots, the fact remains that such a requirement is inherent to the very nature of that service, since compliance with those times slots appears essential in order to ensure the proper performance of that service. 43. In the light of all those factors, first, the independence of a courier, such as that at issue in the main proceedings, does not appear to be fictitious and, second, there does not appear, a priori, to be a relationship of subordination between him and his putative employer. 44. That being so, it is for the referring court, taking account of all the relevant factors relating to B and to the economic activity which he carries on, to classify his professional status in accordance with Directive 2003/88, in the light of the criteria laid down in the case-law set out in paras 27–32 of the present order. 45. It follows from all the foregoing considerations that Directive 2003/88 must be interpreted as precluding a person engaged by his putative employer under a services agreement which stipulates that he is a self-employed independent contractor from being classified as a 'worker' for the purposes of that directive, where that person is afforded discretion: – to use subcontractors or substitutes to perform the service which he has undertaken to provide; – to accept or not accept the various tasks offered by his putative employer, or unilaterally set the maximum number of those tasks; – to provide his services to any third party, including direct competitors of the putative employer, and – to fix his own hours of 'work' within certain parameters and to tailor his time to suit his personal convenience rather than solely the interests of the putative employer, provided that, first, the independence of that person does not appear to be fictitious and, second, it is not possible to establish the existence of a relationship of subordination between that person and his putative employer. However, it is for the referring court, taking account of all the relevant factors relating to that person and to the economic activity he carries on, to classify that person's professional status under Directive 2003/88."
"The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."