“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.”
“296.— Meaning of ‘worker’ and related expressions. (1) 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. (2) In this Act ‘employer’, in relation to a worker, means a person for whom one or more workers work, or have worked or normally work or seek to work.”
“You will see that this agreement means you still have the ability to appoint another person to work on your behalf with Deliveroo at any time. A substitute working for you can log in using your phone or rider app details. But we request that you never ‘swap orders’ with another app user as this can prevent the customer from receiving accurate GPS data to track where their order is.”
“We know that the vast majority of riders work with other companies as well as Deliveroo, including our competitors. That is fine with us: as an independent contractor you are free to work with whoever you choose.”
“104. Mr Hendy made a secondary submission pursuant toarticle 11 ECHR and section 3 of the 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.”
“Having regard to all the above factors, the Court considers that, notwithstanding their special circumstances, members of the clergy fulfil their mission in the context of an employment relationship falling within the scope ofArticle 11 of the Convention . Article 11 is therefore applicable to the facts of the case.”
“The Court infers that domestic legislation grants agricultural trade organisations the requisite rights for defending their members’ interests before the public authorities without any need to establish such organisations in the form of trade unions, which are now reserved for employees and members of cooperatives, in agriculture just as in all the other economic sectors.”
“[The Working Time Directive] 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.”
“The concern to which tribunals must be alive is that armies of lawyers will simply place substitution clauses, or clauses denying any obligation to accept or provide work, in employment contracts, as a matter of form, even where such terms do not begin to reflect the real relationship.”
“In other words, if the reality of the situation is that no one seriously expects that a worker will seek to provide a substitute, or refuse the work offered, the fact that the contract expressly provides for these unrealistic possibilities will not alter the true nature of the relationship. But if these clauses genuinely reflect what might realistically be expected to occur, the fact that the rights conferred have not in fact been exercised will not render the right meaningless. …Tribunals should take a sensible and robust view of these matters in order to prevent form undermining substance …”
“The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smith’s contracts with Pimlico was an obligation of personal performance. To the extent that his facility to appoint a substitute was the product of a contractual right, the limitation of it was significant: the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done.”
“Critical to understanding the Autoclenz case, as I see it, is that the rights asserted by the claimants were not contractual rights but were created by legislation. Thus, the task for the tribunals and the courts was not, unless the legislation required it, to identify whether, under the terms of their contracts, Autoclenz had agreed that the claimants should be paid at least the national minimum wage or receive paid annual leave. It was to determine whether the claimants fell within the definition of a “worker” in the relevant statutory provisions so as to qualify for these rights irrespective of what had been contractually agreed. In short, the primary question was one of statutory interpretation, not contractual interpretation. The modern approach to statutory interpretation is to have regard to the purpose of a particular provision and to interpret its language, so far as possible, in the way which best gives effect to that purpose.”
“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. … 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; 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.”
“It is easy to see that riders might benefit from organising collectively to represent their interests as against Deliveroo, and it might seem to follow that they should have the right “to join and form a trade union for the protection of [those] interests.”
“the regulation of relations between workers … and employers or employers’ associations”
“… that while article 11(1) presents trade union freedom as one form or a special aspect of freedom of association, [article 11] does not secure any particular treatment of trade unions, or their members, by the State, such as the right that the State should conclude any given collective agreement with them. Not only is this latter right not mentioned in article 11(1), but neither can it be said that all the Contracting States incorporate it in their national law or practice, or that it is indispensable for the effective enjoyment of trade union freedom. It is thus not an element necessarily inherent in a right guaranteed by the Convention.”
“ … The Court has not yet been prepared to hold that the freedom of a trade union to make its voice heard extends to imposing on an employer an obligation to recognise a trade union. The union and its members must however be free, in one way or another, to seek to persuade the employer to listen to what it has to say on behalf of its members.”
“145. From the Court’s case-law as it stands, the following essential elements of the right of association can be established: the right to form and join a trade union (…), the prohibition of closed-shop agreements (…) and the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members ([citing Wilson para 44]).”
“154. Consequently, the Court considers that, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and to join trade unions for the protection of [one’s] interests’ set forth inArticle 11 of the Convention , it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions. Like other workers, civil servants, except in very specific cases, should enjoy such rights, but without prejudice to the effects of any ‘lawful restrictions’ that may have to be imposed on ‘members of the administration of the State’ within the meaning of Article 11(2) – a category to which the applicants in the present case do not, however, belong …”
“The applicant’s complaint can therefore be treated as concerning the abolition of a statutory and mandatory mechanism of collective bargaining. Such a complaint may be said to fall within the scope ofArticle 11 of the Convention .”
“If that had been the Court’s understanding, the multi-factorial approach taken in para 65 would have been unnecessary: … There would have been no need for a reference to the UK’s margin of appreciation nor to the striking of a fair balance. Nor would there have been any need, in relation to the second factor, to raise the question whether the restrictions which prevented the union being able to access the statutory machinery in the agricultural sector were justifiable. Indeed arguably the conclusion at the end of para. 58 that the complaint ‘may be said to fall within the scope of article 11’, which is the gateway to the remainder of the Court’s reasoning, would be falsified. It is necessary to note the three final words of the conclusion in para 66 – ‘for agricultural workers’: given the broader context to which I have referred, I think they must be read as equivalent to ‘in the circumstances of the present case’. 47. In my view, therefore, the reasoning in the Unite case acknowledges the possibility that the absence or inadequacy of a statutory mechanism for compulsory collective bargaining might in particular circumstances give rise to a breach of article 11. Such a reading is consistent with the logic of the reasoning in Demir itself, as discussed at para. 38 above. It is fair to say that various observations by the Court, and indeed the outcome of the case itself, tend to suggest that complaints based on the denial of a right to compel an employer to engage in collective bargaining may face an uphill struggle; but the point at this stage is simply that the attempt is not excluded in limine.”
“54. My conclusions on this issue are largely determined by what I have already said about the effect of the Strasbourg authorities. It follows from the recognition by the court in Demir that ‘the right to bargain collectively with the employer’ is an ‘essential element’ of the rights protected by article 11 that a complaint that domestic law does not accord such a right in a particular case will fall within the scope of article 11. But, at the risk of spelling out the obvious, it does not follow from that that article 11 confers a universal right on any trade union to be recognised in all circumstances. It is self-evident that any right to be recognised conferred by domestic law will have to be defined by rules which identify which unions should be recognised by which employers in respect of which workers and for what purposes. To the extent that the rules of any such scheme constrain access to collective bargaining for a particular union (or its members) the constraints will have to be justified by – to use the language of the Unite decision (see para 66, quoted at para 44 above) – ‘relevant and sufficient reasons’ and should ‘strike a fair balance between the competing interests at stake’. But the decision also makes clear that in assessing any such justification the state should be accorded a wide margin of appreciation.”
“61. As to that, the starting point is that since the decision of the European Court of Human Rights in Demir v Turkey 48 EHRR 54 it has been established that ‘the right to bargain collectively with the employer has, in principle, become one of the essential elements’ of the rights afforded by article 11, and that those rights are enjoyed by employees of public authorities as well as by employees in the private sector (subject to article 11.2, as to which see para 64 below): see para 154 of the judgment of the Grand Chamber.”
“If, accordingly, the rights in question fall within the scope of article 11, the United Kingdom is under a positive obligation to secure the effective enjoyment of those rights. That does not mean that it is under an obligation to ensure that they are available to all employees in all circumstances, but it does mean that where a legislative scheme is in place it must strike a fair balance between the competing interests and any provision of that scheme which restricts its availability to particular classes of workers requires to be justified, albeit that the state is recognised to have a wide margin of appreciation. The relevant principles are discussed at paras 33—47 and 54—55 in the judgment of Underhill LJ in R (Boots Management Services Ltd) v Central Arbitration Committee[2017] IRLR 355 , on the basis of Demir 48 EHRR 54 and the later European Court of Human Rights decision in Unite the Union v United Kingdom[2017] IRLR 438 .”
“… to the extent that the rules of any statutory scheme constrain access to collective bargaining for a particular trade union or its members the constraints will have to be justified by relevant and sufficient reasons, and must strike a fair balance between the competing interests at stake; but that in assessing that justification the choice made by Parliament should be given a wide margin of appreciation. I also consider that the case law indicates that Underhill LJ was right to say Page 48 in Boots that complaints based on the denial of a right to compel an employer to engage in collective bargaining face an uphill struggle, but are not excluded altogether.”
“63. The Court recalls that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide. It is necessary but it is also sufficient for the facts of the case to fall ‘within the ambit’ of one or more of the Convention Articles [see Stec v United Kingdom(2006) 43 EHRR 47 , para 39; Andrejeva v Latvia (Application No 55707/00) February 18, 2009, para 74]. 64. The Chamber found that although there was no obligation on a State under Article 1 of Protocol No 1 to create a welfare or pension scheme, if a State did decide to enact legislation providing for the payment as of right of a welfare benefit or pension – whether conditional or not on the prior payment of contributions – that legislation had to be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements [see Stec, para 54]. In the present case, therefore, the facts fell within the scope of Article 1 of Protocol No 1. 65. The Grand Chamber agrees with this finding, which is not, moreover, disputed by the Government.”