Courier's ability to "release" job is not an unfettered right of substitution


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The Employment Appeal Tribunal (EAT) has held in Stuart Delivery Ltd v Augustine that a courier was a worker while undertaking deliveries that he had signed up for through the employer's app.

The courier could "release" the delivery job through the app, but this depended on another courier agreeing to take it on.  If this did not happen then the original courier would be required to do the work or face sanctions.  It followed that this was not an unfettered right of substitution and so could not operate to undermine worker status.

The claimant sought to bring claims for unauthorised deductions and holiday pay, and so the tribunal had to consider the issue of his employment status during the time that he was undertaking "slot" deliveries.  A central issue was whether the claimant was under an obligation to perform services personally, or whether his ability to "release" a slot via the app meant that he was no longer under that obligation.

The claimant had signed up to SD Ltd's technology platform connecting couriers with clients via a mobile app.  Couriers were able to undertake both "ad hoc" deliveries, for which they logged onto the app when they wished to, and "slot" deliveries, for which they committed in advance as being available in a certain geographical zone for a certain period of time.  A courier who signed up for a slot would be guaranteed a minimum rate of £9 per hour for the duration of the shift, irrespective of the actual deliveries carried out, provided that they remained in the zone for at least 90% of the time and refused no more than one delivery.  It was possible for a courier to cancel this slot by sending a "release notification" which made it available to other couriers to accept on a "first come first served" basis.  The courier releasing the slot would not know the identity of the courier who had accepted the slot in his/her place.  The EAT agreed with the tribunal that there was no right of substitution, merely a right to hope that someone else in the pool would take on the obligation, and failing which the original courier was obliged to work.

Take note:  The decision in Augustine is another to add to what is now becoming quite a substantial body of gig economy case law.  It follows the trend of finding that those who are notionally working via a mobile app on a self-employed basis are, in fact, workers.  Here there was no actual right of substitution if none of the other couriers accepted the job and so the courier's worker status could not be undermined.

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