In another worker status case, Stuart Delivery Ltd v Augustine, the EAT has held that a courier’s ability to ‘release’ a delivery job to a pool of couriers did not constitute an unfettered right of substitution. As such, the courier’s worker status was not undermined when working ‘fixed slots’ for the delivery company.
Stuart Delivery Ltd (SD Ltd) describes itself as a technology platform connecting courier partners with clients or users. Mr Augustine was one such courier partner. Once signed up with SD Ltd, the courier partners could take on ‘ad hoc’ deliveries and ‘slot’ deliveries as they chose, the latter of which they committed to in advance.
If a courier partner signed up for a ‘slot’, he or she was guaranteed a minimum payment of £9 per hour, provided they met certain conditions (including remaining in the designated zone for at least 90% of the time and refusing no more than 1 delivery). If a courier partner had signed up for a slot he or she could subsequently cancel by sending a ‘Release Notification’, which would make the slot available for other courier partners to accept. If no one accepted the released slot, the original courier partner remained responsible for completing it, otherwise, he or she would face sanctions.
Mr Augustine brought claims of (amongst other things) unauthorised deductions from wages and holiday pay. The first question for the Tribunal to consider was whether he was a worker when undertaking ‘slot’ deliveries, and therefore whether he was entitled to such rights. The key issue in consideration was whether there was an obligation on Mr Augustine to provide the services personally (a crucial requirement for worker status) or whether his ability to ‘release’ a slot was an unfettered right of substitution, meaning no requirement for personal performance and consequently self-employment.
The Employment Tribunal found that, strictly speaking, the system did not give Mr Augustine the right to send a substitute of his choice. In fact, Mr Augustine had no control over who would take up the slot and if no one took up the slot, he would either have to work it or face the consequences of not doing so. Consequently, the Employment Tribunal held that the system of releasing slots could not reasonably be described as an unfettered right of substitution. As such, the Employment Tribunal held that Mr Augustine was a worker. SD Ltd appealed to the Employment Appeal Tribunal (EAT).
The EAT upheld the Employment Tribunal’s decision. It found that the Employment Tribunal was right to find that there was no right of substitution or – alternatively – there was a limited right. The EAT confirmed that SD Ltd had an absolute and unfettered right to withhold consent to the substitution, since only courier partners whom it had accepted into their pool could sign up for released slots. The EAT concluded that Mr Augustine had no right of substitution, merely a right to hope that someone else in the pool would relieve him of his obligation.
As with other worker status cases, this decision was fact-specific. As such, it is not possible to set any hard and fast rules to analyse whether an individual is a worker or self-employed. However, this case does provide some further useful insight into what constitutes a right of substitution (and what does not, as the case may be).
The question of whether ‘releasing’ and swapping jobs can constitute a right of substitution is likely to be relevant for many companies and individuals in the gig economy. Whether there is a right of substitution is a question of fact. However, the question arises whether the current legislation is in step with the realities of how many individuals are engaged. It will be interesting to see how this area develops, particularly in view of current and upcoming cases, including the imminent Supreme Court hearing in July of Uber’s appeal on worker status.