Definitive Report - Report No 409, March 2025

Case No 3455 (United Kingdom of Great Britain and Northern Ireland) - Complaint date: 28-FEB-24 - Closed

Allegations: The complainant organization claims that it is denied the right to bargain collectively on behalf of the riders of a food delivery company, referring to a 2024 Supreme Court decision

1. 350. The complaint is contained in communications dated 28 February 2024 and 3 April 2024 submitted by the Independent Workers Union of Great Britain (IWGB).
2. 351. The Government transmitted its observations in a communication dated 22 October 2024.
3. 352. The Government of the United Kingdom of Great Britain and Northern Ireland (UK) has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Protection of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 353. In its communication dated 28 February 2024, the complainant asserts that a 2024 UK Supreme Court decision (Independent Workers Union of Great Britain v. Central Arbitration Committee, UKSC/2021/0155) denies them the right to bargain collectively on behalf of its members employed as food delivery riders by Roofoods Ltd, a multinational corporation trading as Deliveroo (hereinafter, the food delivery company). The complainant argues that UK law, as interpreted by the Supreme Court, fails to comply with ILO standards.
2. 354. The complainant indicates that the food delivery company operates a restaurant delivery service in the UK, sending a rider to collect food ordered by a customer from a restaurant or takeaway and deliver it to the customer’s address. It states that riders got paid £3.75 (approximately €5) per delivery in 2016.
3. 355. The complainant indicates that the food delivery company riders wanted the complainant to bargain collectively on their behalf, however the food delivery company refused and refuses to negotiate with the complainant or any union about pay, hours and holidays. A 2022 collective agreement with the General and Municipal Workers’ Union (GMB) only ensured a guaranteed minimum pay equivalent to the applicable National Living Wage plus costs for orders undertaken. The complainant indicates that the food delivery company sets the rider’s terms and conditions without negotiation or consultation. It states that the company had complete power to dictate the contractual terms of the riders on a take-it-or-leave-it basis, leaving each with the choice of accepting the food delivery company’s terms or finding alternative work. The complainant adds that the rider’s terms and conditions were set out in an umbrella contract imposed by the food delivery company, and that their terms took effect each time a rider accepted an instruction (electronically through his/her mobile phone) to collect and deliver an order. According to the complainant, the food delivery company had inserted, without negotiation or consultation, a provision in the umbrella contract between it and each rider permitting the latter to use a substitute. It adds that if a rider declined to agree to this inclusion of this right, they would have to give up the job.
4. 356. The complainant states that the United Kingdom has a statutory procedure by which a union can apply to a quasi-judicial body, the Central Arbitration Committee (CAC) for a declaration that a union be “recognized” by an employer for the purpose of collective bargaining over pay, hours and holidays. The statutory procedure is set out in Schedule A1, Trade Union and Labour Relations (Consolidation) Act 1992 (the TULRCA). In November 2016, the complainant submitted an application to the CAC. The complainant states that it sought a declaration to be recognized by the food delivery company for collective bargaining in respect of the food delivery company riders operating in the food delivery company’s Camden Town one in North London. The CAC gave a reasoned decision in which it refused to accept the complainant’s application on the ground that the riders were not “workers” within the meaning of section 296 of the TULRCA, a condition precedent for admission to the Schedule A1 procedure.
5. 357. The complainant refers to the text of section 296 of the TULRCA which provides:
   • 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.
6. 358. The complainant states that it did not argue that the riders were engaged under a contract of employment within the meaning of section 296(1)(a) of the TULRCA, but that they were engaged under section 296(1)(b) under a “contract whereby [each] undertakes to do or perform personally any work or services for another party to the contract who is not a professional client”, i.e. that they were self-employed but not in business on their own account with their own clients.
7. 359. The complainant indicates that the CAC held that the riders did not work under a contract whereby they undertook to perform the work personally, in view of a provision in their contract permitting them to use a substitute, even though the CAC found that the right of substitution was used “very rarely, if that”.
8. 360. In the view of the complainant, in reaching that conclusion, the CAC applied a purely contractual approach (at [99] of the decision):
   • Even if [Deliveroo] did it [i.e. inserted the clause] in order to defeat this claim and in order to prevent the Riders from being classified as workers, then that too was permissible: all that mattered was the terms of the agreement, analysed in holistic and realistic way set out in Autoclenz. [Counsel for Deliveroo] of course made no concession that either proposition was accurate. Deliveroo’s purpose in deciding the terms of the agreement (and there was no question that the Riders had any direct say in the matter) was immaterial – all that mattered was what the terms actually were.
9. 361. According to the complainant, the consequence (unknown to the riders at the time the substitution clause was inserted) was that their union was debarred from admission to the statutory recognition procedure. It adds that since the employer refused to bargain voluntarily, the result was that the riders’ union was prevented from collective bargaining over their terms and conditions.
10. 362. The complainant indicates that the judicial review of the CAC’s decision was permitted only insofar as the alleged violation of Article 11 of the European Convention on Human Rights (ECHR) was concerned, and not to challenge the CAC’s interpretation of section 296(1)(b) of the TULRCA. The High Court, the Court of Appeal and the Supreme Court later confirmed this decision and dismissed the complainant’s case, finding that: (i) personal service was an essential requirement of entitlement to the trade union rights under Article 11 of the ECHR; and (ii) the riders did not provide personal service because of the contractual permission to use a substitute.
11. 363. The complainant emphasizes that it does not seek to suggest that the right to bargain collectively (whether under the ILO or under the ECHR) entails an obligation on States to provide a compulsory collective bargaining mechanism. Rather, the complainant’s submission (in accordance with three UK Court of Appeal judgements, including National Union of Professional Foster Carers v. the Certification Officer) was that where a State has chosen to provide such a mechanism, a trade union or group of workers should not be lawfully excluded from it in the absence of a reason which is justified by reference to the relevant international instruments and jurisprudence.
12. 364. According to the complainant, the Supreme Court concluded that in order to claim rights under Article 11 of the ECHR, the riders had to be in an employment relationship with the food delivery company, a relationship which required them to provide personal service, which the existence of the substitution clause defeated, thereby contradicting its own judgment in Pimlico Plumbers v. Smith rendered four years ago. The complainant indicates that the Supreme Court identified a number of other factors drawn from the Employment Relationship Recommendation, 2006 (No. 198), which in conjunction with the substitution clause, it said “provide[d] strong support” for the conclusion that the riders were not in an employment relationship with the food delivery company. The complainant contends that the Supreme Court misconstrued many of these factors and it ignored those which gave a contrary indication. It adds that applying the guidance in Recommendation No. 198 should have led to the conclusion that riders were in an employment relationship, for instance as regards the Recommendation’s objective to maximize the protection of workers, its legal presumption in favour of the existence of an employment relationship where one or more positive indicators are present, and the factor that the provision of personal service is not essential to the existence of an employment relationship. The complainant states that in any event, the CAC (the sole fact-finding tribunal) only found the substitution clause as a disqualifying factor, thereby making other factors irrelevant.
13. 365. The complainant states that it accepts that the Committee is not in a position to entertain an appeal from the UK Supreme Court, or to determine the conditions of eligibility for access to Schedule A1 in UK law. It further contends that neither is it in a position to identify the conditions of eligibility for the trade union rights protected by Article 11 of the ECHR. However, the complainant indicates that the Committee is in a position where it can: identify the conditions for eligibility for the right to bargain collectively in accordance with the Conventions, Recommendations and jurisprudence of the ILO; and explain the relevance, if any, of Recommendation No. 198 to such eligibility.
14. 366. The complainant also refers to the right to “effective” collective bargaining in a number of instruments, including the ILO Declaration on Fundamental Principles and Rights at Work (1998), as amended in 2022, the ILO Declaration on Social Justice for a Fair Globalization (2008), as amended in 2022, and the ILO Centenary Declaration for the Future of Work, 2019, and emphasizes that for this right to be effective, it cannot be defeated by a unilateral exercise of power on the part of employer to so construct the contract of engagement of their workers so as to exclude that right.
15. 367. The complainant argues that the United Kingdom appears to have failed to promote negotiation machinery as required by Article 4 of Convention No. 98, since the Supreme Court’s judgment denies workers access to statutory recognition if their contracts allow for the engagement of substitutes and the employer refuses to bargain collectively. It adds that if the United Kingdom had ratified Convention No. 154, it would also appear to be in breach of that Convention, as that Convention provides that no group of workers may be excluded from its protection except on grounds expressly foreseen in the Convention.
16. 368. The complainant argues that Article 2 of Convention No. 87, which provides that all workers have the right to establish and join trade unions “without distinction whatsoever” implies that workers with a right of substitution cannot be excluded from these rights, including the right to bargain collectively. In this respect, the complainant also refers to paragraphs 327–330 of the Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, as regards the right to freedom of association regardless of the existence of an employment relationship.
17. 369. To corroborate its view that the self-employed are not to be excluded from freedom of association rights, the complainant refers to Case No. 2888 [363rd Report (Poland), para. 1084], and Case No. 2602 [363rd Report (Republic of Korea), para. 461], which the complainant asserts include “the possibility of engaging in collective agreements in the interest of ... members”. The complainant also refers to paragraphs 1232, 1260 and 1285 of the Compilation on the scope of collective bargaining, including as regards the self-employed.
18. 370. Moreover, the complainant refers to the 2012 General Survey on the fundamental Conventions and relevant comments as regards collective bargaining rights of, among others, platform workers, self-employed workers, and food delivery couriers. The complainant also refers to the case in the European Committee of Social Rights, ICTU v. Ireland, where it considered in relation to self-employed workers, the right to bargain collectively under the European Social Charter Rights.
19. 371. The complainant acknowledges that the Committee has not specifically addressed the eligibility of workers with a contractual right of substitution regarding the right to bargain collectively. However, the complainant argues that the objective of the protection of workers inherent in ILO Conventions means that the right to collective bargaining should be considered expansively. Therefore, a contractual right to engage a substitute should not negate the right to bargain collectively, where (i) there is a situation of power imbalance as between the worker and the employer, (ii) the terms of the contract are dictated by the employer, and (iii) those terms were not the subject of collective bargaining. The complainant considers that the only circumstance where the existence of a right of substitution might negate a worker’s freedom of association rights including the right to form and join a trade union and the right to bargain collectively, is where the existence of the substitution right: (i) was in fact used to such an extent that personal performance by the worker was not a significant feature of the actual performance of the work; and (ii) constituted convincing evidence that the putative “worker” was in fact a business owner, in business on his or her own account with his/her own clients or customers.
20. 372. The complainant reiterates its view that the purpose of collective bargaining in the ILO instruments and jurisprudence is unambiguously intended to protect workers, which has to be considered when resolving issues of eligibility for the right to bargain collectively. It also refers to a number of court decisions applying such a protective approach (such as the UK Supreme Court case in Uber BV v. Aslam, the Canadian Supreme Court case in Mounted Police Association of Ontario v. Canada (Attorney General), and the ECHR case of Wilson, National Union of Journalists and Others v. the United Kingdom). The complainant states that in the food delivery company’s case however, the Supreme Court did not apply the protective approach inherent in the definition of “worker” in section 296 and Schedule A1 of the TULRCA (and the right to collective bargaining generally), and argues that the Court did not take into account that riders have unequal bargaining powers.
21. 373. The complainant argues that the existence of an employment relationship should not be a prerequisite for the right to bargain collectively, or that personal service is an essential element of an employment relationship. If the Committee considers that personal service is an essential element of an employment relationship, then it is asked to confirm that the requirement of personal service is, among other things: not to be determined by reference solely to the terms of the contract of engagement; to be determined by reference to what happened in practice, namely that personal service was more usual than substituted service.
22. 374. In its communication dated 2 April 2024, the complainant makes the following additional points: there is some evidence of a trend towards treating delivery riders as employees. On 8 March 2024, the Council of the European Union published a provisional agreed draft Directive of the European Parliament and of the Council on improving working conditions in platform work, providing, among other things, for collective bargaining rights of platform workers; on 10 January 2024, the United States Department of Labor published a “Final Rule” on Employee or Independent Contractor Classification under the Fair Labor Standards Act, providing for more favourable factors for classification as employees rather than independent contractors with few rights; on 21 December 2023, the Labour Court of Brussels decided a case concerning the food delivery company and its riders who were engaged on very similar terms to the riders in this case, in which the Court held that riders had to be regarded as in an employment relation with the food delivery company, rejecting the food delivery company’s argument that the Rider’s contractual right to engage a substitute had the effect of defeating the presumption of an employment relationship; on 24 March 2023, the Civil Chamber of the Supreme Court of the Netherlands delivered a judgment in relation to the food delivery company and its riders, rejecting an appeal against a finding that the riders were engaged under a contract of employment, finding that the engagement of a substitute was not in itself incompatible with the existence of an employment relationship; in Spain, a new law adopted in 2021 provides a legal presumption of a dependent employment relationship for digital platform workers in the delivery sector (including, but not limited to food delivery).

B. The Government’s reply

1. 375. In its communication dated 22 October 2024, the Government rejects the complainant’s allegations that the food delivery company riders have been denied the right to bargain collectively under Convention No. 98.
2. 376. Referring to the text of Article 4 of Convention No. 98, the Government recalls that the Convention requires Member States to promote collective bargaining and to ensure that voluntary collective bargaining remains free from restrictions. The Government states that there are no legislative restrictions to the right to engage in voluntary collective bargaining in the United Kingdom, and that all workers, including the self-employed, are granted this right, as was also clearly noted by the UK Supreme Court in paragraph 75 of its the food delivery company judgement, which states that: “Clearly there is nothing in the UK legislation to stop the Riders from forming their own union or joining the Union as they have done. There is also nothing to prevent Deliveroo from engaging in collective bargaining with the Union to seek to agree the terms and conditions applied to the Riders if they so choose. If Deliveroo voluntarily negotiates with the union and concludes a collective agreement, the terms of that agreement may be incorporated into the individual contracts between the rider and the employer.” The Government states that the fact that voluntary collective bargaining is open to all categories of employment status can be evidenced by the activities of recognized unions such as the Criminal Bar Association, representing approximately 3,600 employed and self-employed lawyers (being covered by a voluntary agreement which the union negotiates with the UK Government), and the National Union of Journalists, representing more than 30,000 formally employed, casually employed or self-employed workers. The Government further refers to the conclusion of a collective bargaining agreement by the food delivery company riders with the General and Municipal Workers’ Union (GMB) on 12 May 2022 (which it indicates was also acknowledged by the IWGB in its complaint), and the conclusion of other collective agreements for self-employed workers in other companies by the GMB.
3. 377. The Government contends that the real issue in the complaint is whether there is a right under Convention No. 98 to compulsory collective bargaining (that is a compulsory recognition procedure requiring employers to recognize trade unions for the purpose of collective bargaining) for the self-employed. The Government submits that Convention No. 98 does not go so far as to impose a strict requirement to impose a means of compulsory collective bargaining, and neither the terms of the Convention, nor the body of decisions of the Committee or the Committee on the Application of Conventions and Recommendations do provide for such a right. The Government also contests the complainant’s submission that the national legislation is in violation of Convention No.154 (a Convention which the Government has not ratified), as that Convention also does not require Member States to establish means of compulsory collective bargaining.
4. 378. To corroborate its view that ILO Conventions do not require Member States to adopt a system requiring employers to recognize trade unions for the purpose of collective bargaining (that is a compulsory recognition procedure) nor to compel employers to negotiate with a given trade union, the Government refers to paragraph 1316 of the Compilation, previous cases of the Committee (including Case No. 2149 concerning Romania and legislation obliging employers to enter into negotiations in all enterprises with over 21 employees, Case No. 96 concerning the United Kingdom and the recognition of a trade union for purposes of collective bargaining other than the complainant organization, and Case No. 728 concerning Jamaica and issues in respect of the determination of the most representative union), as well as paragraph 198 of the 2012 General Survey on the fundamental Conventions.
5. 379. The Government reiterates that the national legislation does not contain any restrictions on voluntary collective bargaining. Instead, the legislation contains eligibility requirements that have to be met before an organization can take advantage of the compulsory collective bargaining procedure in Schedule 1 of the TULRCA, a procedure which was adopted as part of the measures taken to promote collective bargaining in conformity with ILO Conventions.
6. 380. The Government states that the UK Supreme Court’s decision focused specifically on whether the food delivery company delivery drivers were in an “employment relationship” with the company under Article 11 of the ECHR. In this regard, the Government emphasizes that determining the scope of Article 11 of the ECHR and how it should be implemented under UK law falls within the remit of the ECHR, and while it does not therefore consider it necessary or appropriate to respond to matters that fall within the domain of the ECHR, it argues that the complainant has mischaracterized the Supreme Court’s decision.
7. 381. The Government recalls that there are three employment statutes in the United Kingdom: employees, workers and self-employed. Support is provided to workers and employers through an open and transparent system for determining employment status. This includes free online guidance and funding for the Advisory, Conciliation and Arbitration Service (ACAS), which offers impartial advice. Additionally, the United Kingdom provides a fair employment tribunal and court system allowing workers or employer to challenge incorrect classifications. Concerning the nature of employment and employment relationships, the UK courts and tribunals have developed case law and various tests to determine the legal obligations between parties, including examining personal service, that is whether an individual must personally provide services or can engage a substitute to do the work in their place.
8. 382. The Government argues that the Supreme Court ruled that the riders enjoy an unfettered and genuine right to substitute another person for deliveries, which is incompatible with the principle of personal service. This decision was based not only on the riders’ contracts but also, in line with established case law, on how these contracts operated in practice. Indeed, the Court of Appeal (the court hearing the case prior to the Supreme Court), as noted by the Supreme Court at paragraph 68(4), acknowledged that: “the right to use a substitute would carry no weight if it disguised the reality of the situation, but the CAC had addressed that and the union had no permission to challenge its conclusion”. The Government further quotes from paragraph 70 of the Supreme Court decision, referring to the court’s satisfaction with the level of scrutiny by the CAC as regards the question whether the contractual provisions genuinely reflected the true relationship between the food delivery company and riders, taking into account aspects such as the absence of policing, criticizing or sanctioning the substitution by riders, the absence of termination of fee-for-delivery contracts for failure to accept a certain percentage or orders, and not objecting to riders working for competitors. The Government indicates that the complainant is incorrect in claiming that simply adding a substitution clause to a contract can deny workers the right to collective bargaining or the use of the compulsory collective bargaining procedures, because such a clause would be assessed against the reality of the situation, in conformity with the Supreme Court’s jurisprudence, as recognized in the food delivery company’s case. The Government further refers to several key cases (Autoclenz v. Belcher, Pimlico Plumbers Ltd v. Smith, Uber BV v. Aslam, and Commissioners for His Majesty’s Revenue and Customs v. Professional Game Match Officials Ltd) that reflect the approach taken by UK courts in determining employment status beyond the wording of the contract in question to the actual reality of the situation. The complainant’s assertion that this case will lead to a proliferation of substitute clauses in employment contracts as a way to swiftly evade a finding of worker status is incorrect and ignores the approach endorsed in line with the case law set out above.
9. 383. Recalling the text of Article 4 of Convention No. 98, and particularly the adoption of “measures appropriate to national conditions” to encourage and promote collective bargaining, the Government expresses the view that the Committee should, in line with the practice of parallel international bodies, allow Member States a broad margin of discretion in assessing such measures.
10. 384. The Government submits that it encourages and promotes collective bargaining, such as through: (i) the CAC for statutory recognition (that is recognition of the union by an employer for the purpose of collective bargaining); (ii) the publication of free online guidance and support for workers to join or form trade unions; (iii) the provision of a relevant legal framework, including the TULRCA and the new Employment Rights Bill, which enhances worker rights and removes restrictions on trade union activities; and (iv) the funding of the Advisory, Conciliation and Arbitration Service (ACAS) which is a public body that provides free and impartial advice to workers, their representatives and employers, as well as the funding of the Employment Tribunal system, which ensures that workers and employers have access to resolve issues in court.
11. 385. The Government states that the genuinely self-employed fall outside the compulsory collective bargaining procedure in the TULRCA, which is uniquely designed and adapted for features of an employment relationship between worker and employer. The self-employed are excluded because they have autonomy over their own work, are in business on their own account, take financial risks, and invest in their own business, as well as sharing in the profits. Their autonomy allows them to choose to provide services to whoever they wish whenever they wish, reducing the obligations their engager has towards them as well as reducing the need for compulsory collective bargaining. The Government does recognize that there are times when the self-employed are dependent on one or two engagers for work, resulting in less control over the prices they can charge for their services. This is why UK law ensures that all categories of workers retain the right to voluntary collective bargaining. Moreover, the TULRCA is part of a range of measures employed by the Government to maintain high levels of labour force participation, with the self-employed being key of this approach, by balancing flexible work options with employer obligations. The Government notes from the complainant’s submission the acknowledgement that there are conditions where self-employed workers can be excluded from compulsory collective bargaining, while the Government disagrees with the narrow criteria set by the complainant to define self-employed workers. In this respect, the Government indicates that it is planning to engage with stakeholders (including unions) to ensure that an appropriate accommodation is reached that works for both civil society organizations and businesses.
12. 386. In fact, whilst the Government considers that existing legislation is compliant with its obligations under Convention No. 98 and ILO standards, it intends to consult on moving towards a single status of worker and updating the statutory recognition process for recognizing trade unions for the purpose of collective bargaining. This reform includes launching a consultation, in which the complainant is invited to participate, on a simpler employment status framework to distinguish between workers and the genuinely self-employed and explore ways to enhance protections for self-employed workers. In this respect, the Government also refers to its commitment to simplifying and modernizing the rules governing trade union recognition, and strengthening trade union and collective bargaining rights, including by introducing the new Employment Rights Bill and repealing the Strikes (Minimum Service Levels) Act 2023 and the Trade Union Act 2016.

C. The Committee’s conclusions

1. 387. The Committee notes the complainant’s allegation that it is denied the right to bargain collectively under Convention No. 98 on behalf of some of its members, that is riders working for a food delivery company in a particular zone in London. The complainant argues that UK law, as interpreted by the Supreme Court, fails to comply with ILO Conventions, particularly Convention No. 98. The Government rejects the complainant’s allegations that the riders have been denied the right to bargain collectively under Convention No. 98.
2. 388. The Committee takes note of the facts of the case as detailed by the complainant, which are not disputed by the Government: Following the refusal of the food delivery company to enter into negotiations with the complainant over the riders’ pay, hours and holidays, the complainant made an application to the Central Arbitration Committee (CAC) under the statutory procedure foreseen in Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the TULRCA) to recognize the complainant’s union for collective bargaining. In its decision, the CAC refused to accept the complainant’s application on the ground that the riders were not “workers” within the meaning of section 296 of the TULRCA, a condition precedent for admission to the Schedule A1 procedure. The complainant did not argue that the riders were engaged under a contract of employment within the meaning of section 296(1)(a) but that they were engaged under section 296(1)(b) under a “contract whereby [each] undertakes to do or perform personally any work or services for another party to the contract who is not a professional client”, that is they were self-employed but not in business on their own account with their own clients. However, the CAC held that the riders did not work under a contract “whereby they undertook to perform the work personally”, in view of a provision in the rider’s contract permitting them to use a substitute (even though the CAC found that the right of substitution was used “very rarely, if that”). The judicial review of the CAC’s decision (being the only fact-finding instance in this case) was permitted only insofar as the alleged violation of Article 11 of the European Convention on Human Rights (ECHR) was concerned, and not to challenge the CAC’s interpretation of section 296(1)(b) of the TULRCA. The High Court, the Court of Appeal and the Supreme Court later confirmed this decision, finding that: (i) an employment relationship and therefore the provision of personal service was an essential requirement of entitlement to the trade union rights under Article 11 of the ECHR; and (ii) the riders did not provide personal service because of the contractual permission to use a substitute.
3. 389. At the outset, the Committee wishes to emphasize, as was also argued by both parties, that it should not and is not taking a position as to whether the interpretation of the national legislation or the European Convention on Human Rights by the Supreme Court is founded. The mandate of the Committee consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 9]. The conclusions issued by the Committee in specific cases are intended to guide governments and national authorities in the discussion and the action to be taken to follow up on its recommendations in the field of freedom of association and the effective recognition of the right to collective bargaining. Therefore, the Committee’s task is confined to examining the outcome of the Supreme Court’s decision on the recognition and exercise of the right to collective bargaining.
4. 390. The Committee notes from the submission of the parties that the Supreme’s Court decision focused on whether the food delivery drivers, which both parties categorize as self-employed, were in an “employment relationship” within the meaning of Article 11 of the ECHR, and that the appealed CAC decision considered whether the food delivery drivers were “workers” within the meaning of section 296(1)(b) of the TULRCA, as a condition for being entitled to be recognized for the purpose of collective bargaining.
5. 391. The Committee wishes to recall that it has considered that the existence of an employment relationship should not be a requirement for the right to enjoy freedom of association rights. In this respect, it considered that by virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and the police – should have the right to establish and join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions, who should nevertheless enjoy the right to organize [see Compilation, para. 387]. The Committee considers that this principle equally applies to food delivery drivers.
6. 392. The Committee further recalls that it has requested the Government to take the necessary measures to ensure that workers who are self-employed could fully enjoy trade union rights for the purpose of furthering and defending their interest, including by the means of collective bargaining; and to identify, in consultation with the social partners concerned, the particularities of self-employed workers that have a bearing on collective bargaining so as to develop specific collective bargaining mechanisms relevant to self-employed workers, if appropriate [see Compilation, para. 1285].
7. 393. As regards the collective bargaining rights of the self-employed, the Committee takes due note of the Government’s argument that there are no legislative restrictions to the right to engage in voluntary collective bargaining in the United Kingdom, and that all workers, including the self-employed enjoy this right. The Committee further notes the Government’s indication that it has taken measures to encourage and promote voluntary collective bargaining, for instance through the establishment of a relevant legal framework, employment tribunals, as well as advisory, conciliation and arbitration services. The Government also indicates that, in addition to the formation of associations and unions also representing self-employed workers (such as the Criminal Bar Association (CBA) and the National Union of Journalists), voluntary agreements have been concluded, for instance between the CBA and the Government and in the delivery sector between the GMB and the food delivery company.
8. 394. The Committee notes the Government’s view that the real issue in the complaint is whether there is a right under Convention No. 98 to “compulsory” collective bargaining (that is a compulsory recognition procedure requiring employers to recognize trade unions for the purpose of collective bargaining) for the self-employed. It notes that the Government submits that Convention No. 98 does not go so far as to impose a strict requirement to impose a means of “compulsory” collective bargaining. The Committee notes that the complainant, on the other hand, emphasizes that it does not seek to suggest that the right to bargain under ILO Conventions entails an obligation on States to provide a “compulsory” collective bargaining mechanism. Rather, the complainant submits that where a State has chosen to provide such a mechanism, a trade union or group of workers should not be lawfully excluded from it in the absence of a reason which is justified by reference to the relevant international instruments and jurisprudence.
9. 395. In this respect, the Committee recalls that it has indeed considered that nothing in Article 4 of Convention No. 98 places a duty on the Government to enforce collective bargaining by compulsory means with a given organization; such an intervention would clearly alter the nature of bargaining [see Compilation, para. 1316]. However, the Committee has also previously stated in the case of the United Kingdom that whereas governments are not under a duty to enforce collective bargaining by compulsory means, they are under a duty to encourage and promote voluntary collective bargaining in good faith between the parties, including the government itself in the quality of employer (see Case No. 2437, Report No. 344, para. 1314).
10. 396. The Committee notes that the Government does not make reference to any specific collective bargaining mechanisms available for self-employed workers, but that it states that the general measures put in place (the legislative framework, employment tribunals and advisory, conciliation and arbitration services) are also open to the self-employed. In this respect, the Committee notes that the Government refers to paragraph 75 of the Supreme Court decision, which states that: “Clearly there is nothing in the UK legislation to stop the Riders from forming their own union or joining the Union as they have done. There is also nothing to prevent Deliveroo from engaging in collective bargaining with the Union to seek to agree the terms and conditions applied to the Riders if they so choose. If Deliveroo voluntarily negotiates with the union and concludes a collective agreement, the terms of that agreement may be incorporated into the individual contracts between the rider and the employer.”
11. 397. The Committee further notes that both parties indicate that the self-employed are excluded from the existing statutory mechanism of recognition for the purpose of collective bargaining under Schedule 1 of the TULRCA in certain cases. In this respect, the Committee notes the Government’s indications that the genuinely self-employed fall outside that procedure, as it is uniquely designed and adapted for features of an employment relationship between worker and employer. The Committee also notes that the Government refers to a number of reasons for this exclusion, for instance that self-employed are excluded because they have autonomy over their own work, are in business on their own account, take financial risks, and invest in their own business as well as sharing in the profits. The Government argues that the autonomy of the self-employed allows them to choose to provide services to whomever they wish whenever they wish, reducing the obligations their engager has towards them as well as reducing the need for “compulsory” collective bargaining. It notes that the Government adds that it does recognize that there are times when the self-employed are dependent on one or two engagers for work, resulting in less control over the prices they can charge for their services. The Government explains that this is why UK law ensures that all categories of workers retain the right to voluntary collective bargaining. While observing the difference in view as to what should be the applicable eligibility criteria for the access of the self-employed to the statutory recognition procedure in Schedule 1 of the TULRCA, the Committee welcomes the Government’s indication that it is planning to engage with stakeholders (including unions) to ensure that an appropriate accommodation is reached that works for both civil society organizations and businesses.
12. 398. The Committee notes that in the case at hand, in practical terms, the food delivery riders have not been able to access collective bargaining as regards their pay, hours and holiday, in view of the company’s refusal and the Supreme Court’s decision’s decision that they do not fulfil the eligibility requirements that have to be met before an organization can take advantage of the statutory collective bargaining procedure in Schedule 1 of the TULRCA. While a voluntary partnership agreement as referred to by the complainant with the General and Municipal Workers’ Union (GMB) was concluded for the food delivery riders, the Committee notes that this agreement only regulates the rider’s entitlement to the minimum pay equivalent to the applicable National Living Wage plus costs for orders undertaken.
13. 399. Taking into account the potential vulnerability of food delivery drivers as set out in the complaint (such as the risks of power imbalances and lack of influence over their contract terms), the Committee welcomes the Government’s indication of its intention to consult broadly, including with the complainant, on moving towards a single status of worker to distinguish between workers and the genuinely self-employed and explore ways to enhance protections for self-employed workers and update the statutory recognition process for recognizing trade unions for the purpose of collective bargaining.

The Committee’s recommendations

1. 400. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee notes the Government’s intention to consult broadly, including with the complainant, on moving towards a single status of worker to distinguish between workers and the genuinely self-employed and explore ways to enhance protections for self-employed workers, including an update of the statutory recognition process for recognizing trade unions for the purpose of collective bargaining.
   • The Committee considers that this case is closed and does not call for further examination.