Were the Employment Tribunal and Employment Appeal Tribunal Right in Determining a Courier Driver was a Worker per the Employment Rights Act (ERA)?

A recent Court of Appeal in the Stuart Delivery Ltd v Augustine case

The simple answer is yes but it all makes for interesting reading…

The Claimant worked for the respondent between November 2016 and March 2017, delivering groceries to home addresses. Via an app, he would make himself available, in advance, to be in a particular geographical zone for a certain time period, then make deliveries within that zone and time period.

In April 2017, the Claimant presented a claim at the Employment Tribunal alleging, amongst other things, that he was owed notice and holiday pay. He claimed he was an employee or, failing that, a worker within the meaning of section 230(3) of the Employment Rights Act (ERA). The Respondent asserted he was neither. A preliminary hearing took place at the Employment Tribunal in June 2017 to establish the Claimant’s employment status.

The main thrust of the Respondent’s argument was that a mechanism in the app whereby the Claimant could release his slot to another courier driver meant ‘there was an unfettered right to substitute another person to do the work’. This is important because if there was no obligation on the Claimant to perform the work personally then he could not be considered a worker as he wouldn’t meet the definition as set out in ERA.

However, the process of the Claimant releasing a slot was not straightforward: he had to send a notification to other drivers in the hope that someone would be available to take it on. If no-one was available, the Claimant would have to do the job or encounter disciplinary sanctions from the Respondent.

On this basis, the Tribunal determined that the Claimant was a worker as the system in place for re-assigning work couldn’t ‘reasonably be described as an unfettered right to substitution’. The Tribunal also pointed out that there was no right to substitute written into the Claimant’s contract.

The Respondent appealed to the Employment Appeal Tribunal (EAT) on the grounds that the original Tribunal had erred in law by misconstruing the guidance set out on substituting work in a previous case, Pimlico Plumbers v Smith. The EAT rejected the appeal, determining that the original Tribunal was correct and that there was ‘no right of substitution at all… merely a right to hope that someone else will relieve you of your obligation.’

Earlier this month, The Court of Appeal ruled in agreement with the EAT and dismissed the appeal.

The judgment will make for happy reading for Stuart Delivery courier drivers who long for worker status and the benefits it brings. It will also please courier drivers who work for other companies who operate a similar system for substituting work. It remains to be seen whether the Respondent will make an application to take the case on to the Supreme Court.

Post written by Jack Dooley – Paralegal: didlaw