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Substitution Rights of Delivery Drivers Preclude Them from ‘Worker’ Status

The High Court has ruled in a guideline case that a group of food and drink delivery drivers who can substitute others to perform their roles are not ‘workers’. The decision spelt defeat for a trade union which had sought recognition in order to represent the drivers for collective bargaining purposes.

The union argued that the drivers, all of whom performed motorcycle deliveries for the same company, were providing their services personally and thus fell within the definition of ‘worker’ contained within Section 296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992.

In rejecting the union’s application for recognition in respect of the drivers, however, the Central Arbitration Committee (CAC) found that their ability to substitute others to perform services for the company in their place was fatal to the claim. The right of substitution was genuine, unfettered and operated in practice. In the circumstances, it could not be said that the drivers undertook personally to perform any work, or provide any services, to the company.

In dismissing the union’s challenge to that decision, the Court rejected arguments that the refusal of recognition amounted to a breach of Article 11 of the European Convention on Human Rights, which enshrines everyone’s right to freedom of assembly and to form or join a trade union.

Although it was accepted that the term ‘worker’ embraces some self-employed persons, the Court upheld the CAC’s conclusion that the power of substitution meant that the drivers were not in an employment relationship with the company. Neither domestic nor Strasbourg case law supported the proposition that the right collectively to bargain extends beyond such a relationship. Article 11 was therefore not engaged.