Facts

Stuart Delivery Ltd developed a technology platform connecting couriers with clients via a mobile app. Couriers can opt to undertake ‘ad hoc’ or ‘slot’ deliveries. Slot deliveries require the couriers to commit to being available in a certain place at a certain time, in return for a minimum rate of £9 per hour. A courier may release a ‘slot’, making it available to other couriers, but if no one accepts, then the original courier remains liable for completing it. When the claimant, Warren Augustine, sought to bring various claims against Stuart Delivery Ltd, the employment tribunal had to decide whether or not he was under an obligation to perform services personally. This is a requirement for ‘worker’ status under S.230(3)(b) ERA.

Tribunal Decisions

The employment tribunal held that the claimant was a worker. Once the claimant had signed up for a ‘slot’ during which he was to be available to deliver goods by moped, he was required to perform those services personally. Furthermore, the claimant’s ability to release a slot to other couriers via the respondent’s app was not a sufficient right of substitution to remove the obligation on the claimant to perform his work personally. The Employment Appeal Tribunal upheld that decision.

The respondent argued that the employment tribunal erred in its understanding of the principles governing the circumstances in which the ability of a person to appoint a substitute to carry out the work means that the person is not under any obligation personally to perform the work. Consequently, it argued that the employment tribunal failed to properly consider whether the extent of the claimant’s right to use a substitute courier for one of his slots meant that he was not required to perform the work personally and so was not a worker for the purposes of the relevant legislation.

Court of Appeal Decision

The Court of Appeal confirmed that the issue for a tribunal is whether a claimant is under an obligation personally to perform the work or provide the services.

It held that, on a proper interpretation of the contract, the claimant was required personally to perform the work and there was no express contractual right to appoint a substitute.

The court also noted that, in any event, the Supreme Court had subsequently reviewed the correct approach to determining whether a person is a worker in Uber BV v Aslam.

The court held that the tribunal had been entitled to find that Mr Augustine was a worker within the meaning of section 230(3)(b) of the ERA 1996. The tribunal had correctly identified the relevant issue (personal performance under a contract) and the two principal arguments made by Stuart Delivery on that issue:

• That there was no obligation on Mr Augustine personally to turn up and perform the slots.
• That he was free to seek to substitute another courier for any slot which he changed his mind about covering.

What does this mean?

This decision is an important addition to the current employment status cases arising out of the gig economy. Whilst an unfettered right to provide a substitute is inconsistent with an undertaking to provide services personally, it appears to be the case that it will be rare in practice to have such an unfettered right, especially where the work is done as part of an organisation which has in place service standards, a brand or uniform, eligibility requirements and vetting procedures.