The Court of Appeal has confirmed that Mr Augustine, who worked ad hoc shifts delivering parcels by moped, should have been classified as a worker. In reaching this conclusion, it has upheld earlier decisions of the employment tribunal and the Employment Appeal Tribunal to the same effect.
There was no challenge to the tribunal’s decision that Mr Augustine was not an employee, so the appeal turned on whether he should have been classified as a non-employee worker (as the tribunal had ruled) and or as self-employed (as his employers were arguing). There are two elements in the definition of a non-employee worker. First there must be a contract whereby the individual undertakes personally to do work or perform services for the other party to the contract. Secondly, that other person must not be a customer of a business being conducted by that individual.
There was no appeal against the finding of the employment tribunal that Mr Augustine was not in business on his own account, so it was only the first element of the definition which was in issue. The employer argued that the employment tribunal had not given enough weight to the arrangements which allowed couriers to withdraw from a pre-booked slot in certain circumstances.
As a general rule couriers had to be available to make deliveries in a defined area during any time slot to which they had previously committed via the employer’s app, or face certain penalties. However, a practice had grown up (it was not clear whether or not this was a contractual entitlement) which allowed couriers to withdraw from such a slot without penalty if another courier who had also signed up to make deliveries via the app agreed to take it over.
The employers argued that the ability to transfer a pre-booked slot in this way was sufficient to demonstrate that the courier was not required to perform deliveries personally. However the Court of Appeal ruled that the employment tribunal had been entitled to conclude that, looking at the arrangements as a whole, Mr Augustine was legally obliged to provide his delivery services personally, and so should be classified as a worker.
All employment status cases are fact specific, so it does not follow that other gig economy couriers will necessarily be classified as workers in future litigation. However what this latest ruling has to say about the Supreme Court’s decision in the Uber litigation is of wider interest. This is not a case where the Uber ruling would have changed the final outcome, but it may be that the broad principles it established would have narrowed some of the issues that the employment tribunal had to determine in this case.
The Court of Appeal makes the point that previously, when looking at whether a right of substitution was sufficient to displace the obligation to perform services personally, it had been thought necessary to assess whether the right to substitute was contractual, or whether it operated on a discretionary basis. However since Uber it is clear that what matters is what the arrangements are on the ground, and that the contractual status of those arrangements is no longer determinative. Conversely, if there is a contractual right of substitution which is rarely used in practice, tribunals are likely to be free to disregard this if the other arrangements are consistent with worker status.