An employment tribunal has held in Mr S O'Eachtiarna and others v CitySprint (UK) Ltd that five cycle couriers were workers for the purposes of a holiday pay claim.
The tribunal had previously found in January 2017 that a courier engaged by CitySprint on an earlier contract was a worker under section 230(3)(b) of the Employment Rights Act 1996. A change in contractual terms had then been made in November 2017, but the tribunal held in O'Eachtiarna that the couriers remained workers after that date. Although there was a contractual right of substitution, it was theoretical and had never been exercised and the dominant feature of the contract remained personal performance. CitySprint was not a client or customer of a profession or undertaking. Most of the couriers did other work, but they did not provide their services as a cycle courier elsewhere or market themselves as providing cycle courier services.Take note: This is the latest in a long line of cases in which ostensibly self-employed contractors have been found to be workers. A contractual right of substitution will not necessarily defeat the requirement for personal performance, particularly if it has never been exercised.
