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The statutory recognition procedure
[ch 5: pages 135-136]TULRCA provides a mechanism for unions to gain statutory recognition even where the employer is implacably opposed (Employment Relations Act 2004, Part V1, Schedule A1: Collective bargaining, Recognition, TULRCA). There are many limitations to the statutory recognition procedure, which is generally regarded by unions as unfit for purpose.
Only workers (including zero hours contract workers) can benefit from the statutory recognition procedure, not the genuinely self-employed. However, “worker” includes anyone misclassified as self-employed who is really a worker (FNV Kunsten Informatie en Media v The Netherlands [2014] Case C/413/13).
Deliveroo recognition application defeated by “substitution” clause
Only workers can apply for statutory union recognition, and the burden of proof is on the union to establish worker status. In IWGB v RooFoods Limited T/A Deliveroo [2017] TUR1/985(2016, 14 November 2017, an application for union recognition to represent cycle couriers in Camden and Kentish Town was defeated on the basis that the couriers were not “workers”.
Shortly before the CAC hearing, Deliveroo changed its standard contract terms. In particular, the new contracts included an unrestricted “substitution” clause, allowing the courier to appoint anyone else to do their work at any time by logging into the App using the rider’s own Deliveroo password and mobile device. The only exception is anyone previously banned by Deliveroo, or who has acted in a way that would have led them to be banned. Under the terms of the substitution clause, 100% of the risk as to the behaviour of the substitute falls on the courier, whose contract can be ended at any time for no reason on giving seven days’ notice. In reality, couriers are rarely likely to need or want to use a substitute, since they are not under any obligation to accept a shift if offered.
The Deliveroo “substitution” clause makes no commercial sense. In particular, Deliveroo cannot control the training and quality of the substitute, exposing the business to the risk of reputational harm, and customers in their homes to the risk of an unknown substitute courier with no CRB check and no food safety training. Before the CAC, Deliveroo argued that it was irrelevant whether its purpose in introducing this substitution clause was to circumvent the statutory recognition procedure (which, in any event, it denied). All that mattered was whether the substitution clause was genuine, not why it was introduced.
The CAC concluded that the substitution clause was indeed genuine and not a sham. The recognition application therefore failed, despite evidence accepted by the CAC of “considerable and consistent levels of support” for union recognition over a long period of opposition by Deliveroo. Had the couriers been found to be “workers”, said the CAC, it would have ruled that there was enough support for recognition for a recognition ballot.
The union has sought judicial review of this decision.
IWGB v RooFoods Limited T/A Deliveroo [2017] TUR1/985/2016
Small employers (those with 21 or fewer workers) are excluded from the statutory recognition procedure.
Where a union has many members based outside the UK, access to the statutory recognition machinery will depend on the strength of workers’ connection to the UK (Netjets Management Limited v CAC and Skyshare [2012] EWHC 2685).
The first step when applying for recognition using the statutory procedure is to send a written request to the employer. If a recognition agreement cannot be negotiated, the next step is a formal written application to the CAC.