Right of substitution and worker status


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The Court of Appeal has held in Stuart Delivery Ltd v Augustine that a courier, who could release a delivery slot that he had agreed to undertake to another courier, worked under a contract for the personal performance of services and was a worker.

His right of substitution was limited enough to be consistent with personal performance.

SD Ltd has a technology platform connecting couriers with clients via a mobile app. Couriers can opt to undertake "slot" deliveries requiring them to commit to being available in a certain place at a certain time in return for a minimum of £9 per hour. A courier can release a slot making it available to other couriers, but if no one accepts, then the original courier remains liable for completing it. A sought to bring various claims against SD Ltd and the tribunal had to consider whether he was under an obligation to perform services personally and thus had worker status.

The tribunal found that the release procedure did not amount to an unfettered right of substitution as the claimant would only be released from his obligation to undertake the slot if another courier signed up, and he had no control over whether this happened.  It also held that SD Ltd was not a client of any business run by the claimant. The Employment Appeal Tribunal (EAT) agreed with the tribunal, and SD Ltd appealed to the Court of Appeal.

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 services. It observed that the system set up by SD Ltd was intended to ensure that A did carry out the work and, in particular, that he did turn up for the slots that he had signed up for and did the delivery work during those slots. The limited right or ability of A to notify other couriers via the app that he wished to release that slot for take up by other couriers was not, in reality, a sufficient right of substitution to remove from him that obligation to perform his work personally.

Take note: The Court of Appeal's decision confirms that while an unfettered right to provide a substitute is inconsistent with an undertaking to provide services personally, the cases where such a right is genuinely unfettered are relatively rare.

 
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