The UK Supreme Court has delivered its hotly anticipated (at least within employment law circles…) judgment in the Independent Workers Union of Great Britain (IWGB) -v- Central Arbitration Committee; that Deliveroo riders are not employees within the meaning of Article 11 ECHR and therefore cannot be represented by trade unions for collective bargaining.

The facts of this case, as is true for most matters which progress to the Supreme Court, are nuanced. In summary, the Supreme Court was looking to decide: i) whether Deliveroo riders fell within the scope  of Article 11 of the European Convention of Human Rights (ECHR); and ii) if the riders did fall within the scope of Article 11, did UK law compel Deliveroo to engage in compulsory collective bargaining with the union either in all circumstances or some?

In the culmination of the seven year saga, the Supreme Court passed a unanimous judgment that the Deliveroo riders were not within the scope of Article 11, i.e. there was not a relationship akin to employment. This decision was reached following an evaluation of the realities of the working relationship between the riders and Deliveroo. The characteristics which were assessed included: (most notably) the unfettered right of substitution (whereby Deliveroo do not need to offer any form of approval for a substitute being engaged by a given rider), the riders’ freedom to choose how regularly they accepted/ declined work and the absence of repercussions for regular non-acceptance of work.

This judgment contributes towards the ever-growing bank of caselaw examining the gig economy and how it fits within the established legal framework. In recent years there have been several cases passing through the courts which have challenged similar issues, for example Pimlico Plumbers Ltd v Smith and Uber BV v Aslam. On the one hand, it is becoming apparent that each case will turn on its specific facts (when establishing an individual’s employment status); on the other hand, this judgment has produced a significant takeaway, which is the power of persuasion given to a genuine and unfettered right of substitution when considering whether or not an individual is an employee or not.

With Deliveroo hailing this outcome as a positive turn of events and IWGB conversely labelling it as a disappointment, there are bigger questions to be posed as to the sustainability of the gig economy business models – does it offer freedom and flexibility to the workforce or does it avoiding giving rights to individuals who are potentially in already vulnerable positions?