The criminal Bar on strike: collective action for the self-employed

On 10 October 2022, the Criminal Bar Association (“CBA”) announced that 57% of its members had voted to accept a pay deal proposed by the Government, thereby ending its campaign of collective action in which criminal barristers had withdrawn their labour from the criminal justice system. 

The action raised interesting questions about what legal protections, if any, are afforded to self-employed individuals who take collective action to improve working conditions in their profession.

Workers or self-employed?

The situation of criminal barristers is not unique. In the gig economy, it is common for terms and conditions to be set unilaterally by the business platform (e.g. Uber, Deliveroo). Individuals who are engaged by the business platform have no meaningful opportunity to negotiate variations to those terms and conditions.

The best strategy, from the perspective of gig workers, is to seek to vary their terms and conditions by engaging in collective bargaining.

ECHR jurisprudence has established that “the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and join trade unions for the protection of [one’s] interests’” under Article 11: Demir and Baykara Application No.34503/97 (2009) 48 EHRR 54 at [154].

The application of this principle to gig workers is not straightforward, for two reasons.

First, gig workers are typically classified as self-employed by their contract of engagement, so it can be difficult to identify the “employer” with whom they are entitled to collectively bargain.

Second, if gig workers are not “workers” within the meaning of s.296(1) TULRCA 1992 (which is materially identical to the s.230(3)(b) ERA 1996 definition), then they are precluded from the statutory definition of a trade union, because their organisation would not consist “wholly or mainly of workers”.

As a first step towards securing the right to engage in collective bargaining, gig workers may choose to challenge their employment status. This approach has had varying degrees of success. Most prominently, in Uber v Aslam [2021] UKSC 5, [2021] ICR 657, the Supreme Court held that Uber drivers were workers within the meaning of s.230(3)(b) ERA 1996 because of the degree of control exercised over them by the Uber platform: [101].

However, determining whether an individual is a “worker” is a highly fact-sensitive inquiry. There is no guarantee that individuals who wish to engage in collective bargaining will persuade an employment tribunal that they fall within the statutory definition. See here for our post discussing some of the complexities in this area. Further, there are some professions, including the barristers’ profession, where there is no dispute that individuals are correctly classified as self-employed.

The Article 11 rights of the self-employed

In 2017, the Independent Workers’ Union of Great Britain (“IWGB”) applied to the Central Arbitration Committee (“the CAC”) to be recognised by Deliveroo for collective bargaining in respect of a group of Deliveroo riders. The CAC refused the application on the basis that the riders were not “workers”. The CAC found that the riders’ contracts did not impose an obligation to personally perform their services, as the contracts permitted the use of substitute riders.

On appeal in IWGB v CAC and Deliveroo [2021] EWCA Civ 952, IWGB argued that the riders fell within the scope of protection of Article 11 and, further, that Article 11 gave IWGB the right to seek compulsory recognition under the TULRCA procedure.

Article 11 ECHR provides:

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.

The Court of Appeal noted that it was to some extent in “virgin territory” in considering what Article 11 rights, if any, were to be enjoyed in app-based relationships such as that between Deliveroo and its riders: [63]. Underhill LJ referred to the European Court of Justice (“CJEU”) case law on worker status, reasoning that the ECtHR habitually refers to international jurisprudence where appropriate: [73]. In B v Yodel Delivery Network C-692/19, the CJEU held that a discretion to use substitutes is a factor which negates the existence of a subordinate relationship between an individual and his putative employer: [35-38], [45]. Underhill LJ reasoned that the CJEU’s approach gave an indication of the approach likely to be taken to worker status issues by Strasbourg: [73]. The Court of Appeal therefore held that the domestic approach of requiring “personal service” to satisfy the definition of “worker” under s.296(1) TULRCA was consistent with the requirements of Article 11: [80].

The upshot of this decision was that, because the CAC had been entitled to find that the right of substitution enjoyed by Deliveroo riders negated the requirement of personal service, the riders did not fall within the scope of trade union freedom under Article 11: [85]. IWGB could therefore not apply to the CAC to be recognised by Deliveroo for the purposes of collective bargaining.

Underhill LJ recognised that this conclusion “may at first sight seem counter-intuitive”, stating at [86]:

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.

…I think it is important to appreciate the distinction between the right to organise generally and the right to organise as a trade union (with the particular protections which that right attracts in the Strasbourg jurisprudence, particularly since Demir). The ECtHR has clearly decided that the latter right need not be enjoyed by the self-employed, and that it is sufficient that they enjoy other forms of freedom of association.

(emphasis added)

The significance of the IWGB case is that the self-employed do not have a right to organise as a trade union, however, they are not prevented from other forms of organising. Further, there is a strong argument that other forms of organising will still attract a degree of protection under Article 11, albeit that it will not be afforded the particular protections afforded to organising through a trade union.

Collective action for the self-employed

In typical worker and employee cases, the nature of strike action necessarily entails a breach of the work contract, which in the absence of statutory safeguards can result in actions for damages being brought against those strikers. Unions are also prima facie liable for economic torts because they have induced the breaches of contract. Workers like the Deliveroo drivers are, generally speaking, subject to no such constraints when they withdraw their labour. No contracts are broken because there is no obligation of personal performance and, therefore, the organisers of such actions are not liable in tort. At this level of generality, the self-employed have certain advantages over their employed counterparts when taking strike action.

However, being self-employed and falling outside the protective scope of both the ERA and TULRCA, self-employed strikers may be subjected to detriments. For example, strikers like the Deliveroo drivers might find themselves prevented from taking on work for a period of time, or they could be “blacklisted” (in effect, dismissed) from the app. In the context of the CBA strike, some argued that striking barristers may have breached their professional ethical obligations. These workers might ask whether, and to what extent, they are protected in law when they withdraw their labour.  

The ECtHR in Demir summarised the following “essential elements” of the right of association: (i) the right to form and join a trade union; (ii) the prohibition of closed shop agreements; (iii) the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members: [145]. Further, the ECtHR held that labour law had developed such that “the right to bargain collectively with the employer” had become an essential element of Article 11: [154].

But what of the situation where strikers are not organised by a trade union? The CBA is a good example of this. As is well known, this summer thousands of criminal barristers refused to carry out any criminal trials until their demands were met or an agreement was reached with the MoJ. Back in June, the Lord Chief Justice suggested that “A failure to attend at court, having accepted instructions, may amount to professional misconduct… All cases in which there is non-attendance should be referred to the Senior Presiding Judge’s Office to consider whether to involve the Bar Standards Board”. We note in passing that the legality and meaning of this guidance is neither straightforward nor uncontroversial. Although we are not aware of any cases where disciplinary action materialised, if any barristers had been fined or struck off as a consequence of their strike action, it appears at first glance that such disciplinary action would have fallen outside the protection of domestic law.

However, we suggest that Article 11 may be of some assistance in instances like this. Ezelin v France (Application no. 11800/85) (1992) 14 EHRR 362 involved a lawyer who was reprimanded by the French Bar Council for participation in a demonstration in which abuse was hurled at members of the judiciary. The Court held that any form of dissuasive penalty, including a reprimand, will engage Article 11: [39]. Indeed, while the rules governing the professional conduct of an avocat were sufficiently clear for the interference to be in accordance with law, the interference was not proportionate given that the avocat had not personally committed any reprehensible act in the exercises of his rights: [45], [51]-[53]. This case is particularly noteworthy given (i) it predates the ECtHR’s much stronger recent jurisprudence on the right to strike and (ii) the niceties of the avocat’s employment status were not considered. In our view, any form of reprimand by the UK’s legal professional bodies against the criminal bar strikers should engage Article 11, regardless of that striker’s employment status.

How might Article 11(2) operate in a case of this kind? At the outset we note that the CBA’s guidance states:

“Whilst it is possible under article 11.2 to regulate or to impose restrictions on the right to associate or to strike, any restrictions on association (including, in particular, criminal or disciplinary/penal sanctions for striking) are to be construed strictly; only convincing and compelling reasons can justify restrictions on the freedom of association.”

Although the precise contours of Article 11(2) are somewhat difficult to predict, we suggest that two cases might be indicative of the Strasbourg Court’s likely approach in this area. First, in Karaçay v. Turkey (Application no. 6615/03), a civil servant participated in a national one-day strike organised to protest against declining salary levels. He was issued with a warning. Despite the relatively light nature of the sanction, because it was “intended to dissuade members of trade unions from legitimately taking part in such a strike day or from taking actions to defend the interests of their members”, the interference with Article 11 was not justified: [36]-[39].

Secondly, in Kaya v Turkey (Application no. 47988/09), two civil servants that were members of a trade union were disciplined by their employer Ministry on the basis that they had signed a statement to the press organised by their union. The Court followed Karacay and held that this was also an unjustified interference. It may be that these cases are distinguishable from the position of the CBA strikers due to the absence of a recognised trade union. However, given the strengthening of the Court’s jurisprudence under Article 11 in the last decade, there is scope for arguing that the CBA should be regarded as functionally equivalent to a union in such a case.  

Although the significance of these cases was underplayed by the Court of Appeal in Mercer v Alternative Future Group [2022] EWCA Civ 379, [2022] ICR 1034, that is not to say that they are irrelevant to the question of whether Article 11 provides some protection against detriment from regulatory bodies. However, in light of the Strasbourg cases, and in particular RMT v United Kingdom [2014] IRLR 467, it is likely that any interference with the right of the self-employed to take collective action will require less by way of justification than interference with industrial action organised by an independent trade union. Further, the fact that these cases all involve state actors may mean they have less significance to self-employed workers in the private sector. In our view, there remains scope for developing arguments about the level of protection afforded by Article 11 to self-employed individuals who take collective action.

Conclusions

It is clear that the exact protections offered under Article 11 are not readily ascertainable from the case law.  Self-employed strikers may find that the absence of a recognised trade union behind them would mean that the protection offered by Article 11 is weaker. It may also be argued that a sanction against CBA strikers would not be motivated by the same intent as that exhibited in Karacay and Kaya. Much would depend on the particular circumstances. However, in this piece we seek to show that legal protections for self-employed strikers could be more expansive than meets the eye.