Case law: Ability to offer a fixed ‘shift’ to others via an App did not stop courier being a ‘worker’ with employment rights
Employers allowing workers to offer other individuals the option to take over a ‘shift’ should consider whether that means the worker can substitute someone else to do their work, as this affects whether the individual is a ‘worker’ enjoying certain employment rights - or a self-employed contractor who does not.
This update was published in Legal Alert - January 2020
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As well as carrying out ad hoc deliveries, a bike courier worked fixed shifts or time slots (typically three hours) for a delivery company for an agreed hourly wage, in a defined geographical area. During each shift he was not allowed to leave his area, was required to carry out deliveries allocated to him and was not allowed to do other work.
However, if he did not want to work a shift he had signed up to do he could use an App to offer it to a pool of approved alternatives.
He claimed unauthorised deductions from wages, failure to pay holiday pay, breaches of rule regarding part-time workers and failure to pay the national minimum wage.
The ability to bring some of those claims depended on whether he was a ‘worker’ for employment law purposes. If he was an independent contractor, he could not. Usually, if a person can substitute another individual to take their place in relation to their work, they are an independent contractor. The issue was whether the fact the App gave him power to offer a shift to others meant he had such a power of substitution.
The Employment Appeal Tribunal ruled that he did not have a power of substitution as he had no control over whether another courier would actually agree to take over his slot; or if one did, who that courier would be. He was therefore a worker and entitled to bring his claims.
- Employers who allow workers to offer others the option to do some or all of their work should consider whether or not that amounts to a power to substitute someone else to do the work, as this could affect whether they are a worker who enjoys certain employment rights - or a self-employed contractor who does not.
Case ref: Stuart Delivery Ltd v Augustine UKEAT/0219/18/BA
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.
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