Thread by @JasonBraier

1/ Avid readers of the ILJ are in for a treat when the next issue is released, as the high priests of #ukemplaw @thebigbogg & @MichaelFordQC have written a superb article covering the Art 11 ECHR cases of Foster Carers & Deliveroo, employment status & substitution clauses.

2/ To whet your appetites, some vague clues to highlights. They argue there was a much simpler route to victory for the Foster Carers than looking to Art 11 ECHR, in that in fact foster carer relationships were governed by contract & the earlier case law to the contrary was wrong

3/ They argue the earlier case law (W v Essex) relied too heavily on the fact foster care agreements were governed by statutory obligations - that should only negate the existence of a contract where it leaves no space for the contract to occupy.

4/ That wasn't so with foster carers generally, & specifically those in the NUPFC case, where the statute did no more than provide a minimum level of allowances to cover the cost of care, & left unrestricted contractual decisions on additional payments or fee levels.

5/ B&F argue Uber provides impetus against W with its purposive approach & focus on drivers' autonomy, & noting the significant autonomy of foster carers whilst also subject to oversight - the type of situation the SC in Uber stressed the statutory regime was there to protect.

6/ B&F move on to approve of Underhill LJ's reliance on ILO Recommendation 198's multi-factorial balancing approach in determining whether the foster carers were in an employment relationship to which collective bargaining rights applied via Art 11 ECHR.

7/ Having approved of this, B&F move on to distance themselves from Underhill LJ's restrictive use of that approach to the question of a union getting listed. They argue for the sense of a unified approach to employment status where core Art 11 rights are engaged under TULRCA.

8/ B&F then comment on Underhill LJ's reliance on EU case law in determining whether there was an employment relationship for Art 11 purposes. They note a marked difference in approach between the ECtHR & CJEU, with the former never having aligned itself to the latter's approach.

9/ They note in particular the independent autonomy of approach in the CJEU, with status cases often decided by the court without referring back to the national court, bolstered by numerous references in EU legislation to the term 'worker'.

10/ By contrast, the ECHR has no definition of worker, nor of trade union & trade union rights are merely a small aspect of the Art 11 rights rather than its focus. Moreover the ECtHR can retreat behind the margin of appreciation & Art 11(2) to fudge matters & render them hazy.

11/ Notwithstanding all of the marked differences of approach, B&F consider Underhill LJ's reliance on CJEU case law (Sindicatul) justified given a shared central core to the 2 regimes such that those meeting the CJEU's worker criteria almost certainly fall within Art 11 ECHR.

12/ Next up, B&F turn to Deliveroo (which still awaits a permission decision in the Supreme Court) & the approach to its widely drafted substitution clause (redrafted shortly before the CAC determined IWGB's application for formal recognition by Deliveroo).

13/ In Deliveroo, the CAC found the modified mega-wide substitution clause not a sham & that it negated the undertaking to do work personally & thus worker status wasn't made out. IWGB JR'd the decision, but were restricted to Art 11 grounds. This reached the Court of Appeal.

14/ The CA (Underhill LJ leading again) relied once more on the ILO Recommendation criteria & found the substitution clause fatal to any finding of employment relationship for Art 11 ECHR purposes. The authors disagree.

15/ They note the ILO Rec emphasises the "fact" of work being carried out personally, suggestive that operative facts trump contractual entitlements. They also focus on the ILO's emphasis on indicators of whether an employment relationship exists, with no indicator being decisive

16/ Moreover, the ILO recommends a purposive approach to the indicators in much the same way as the Sup Ct's purposive approach applies in Uber, with the focus on whether the substitution clause demonstrates a level of independence not vulnerable to contractual exploitation.

17/ B&F find that purposive analysis missing from the CA's judgment in Deliveroo, with its very narrow focus on the contractual nature of the substitution clause & its treatment of decisive rather than merely indicative even when other factors pointed strongly the other way.

18/ They suggest the correct approach would be to take look at the indicative factors cumulatively & ask whether they point to a situation where subordinate/dependent workers needed the statutory protection or were an independent party capable of looking after their own interests

19/ Such an approach wouldn't give substitution clauses a superpower above all other indicators, but would invite its assessment in the broader context to see which way it pointed. Notably in Delivery the riders had no influence over the inclusion of this wide substitution clause

20/ B&F also suggest that the purpose of Deliveroo modifying the substitution clauses was to impermissibly contract out of statutory rights - a motivation which calls for particularly strong adherence to a purposive approach, all the moreso where fundamental rights are at stake.

21/ Thus B&F argue Deliveroo was wrongly decided. Ultimately (if permission in Deliveroo is granted) they urge the Sup Ct to take a simple, unified, purposive domestic law approach to status, in a manner that's also consistent with EU & ECHR law, to simplify this area for us all

22/ The article is unmissable. No Twitter thread can fully do it justice. Look out for it when released.
Its legal argument is invaluable & its prose worthy of being written by the greatest of authors (by which of course mean Dan Brown, Jeffrey Archer & John Grisham)
#ukemplaw