The claimant in Dewhurst v CitySprint UK Ltd was a cycle courier, typically working four full days a week. The way the courier firm operates is that couriers log into and out of an electronic tracking system at the start and end of the day. A controller assigns jobs based on the tracking system; courier and controller remain in contact throughout the day.
The London Central Employment Tribunal decided that the claimant was a worker while she was "on the circuit" (logged into the tracking system).
The company argued that the contractual documentation (headed "Confirmation of Tender to Supply Courier Services") showed she was self-employed. They were under no obligation to provide work and she wasn’t required to work. But the Tribunal thought that there was a discrepancy between the documentation and the reality and, in accordance with the landmark Autoclenz Supreme Court case, they had to explore the true situation. A number of factors led them to conclude that the documentation didn’t reflect reality and she was in fact a worker:
• The claimant was given instructions throughout the day; she wore a uniform and was even told to smile when greeting customers.
• The documentation was inaccurate in saying that she could work for others whilst undertaking courier jobs – in practice, this wasn’t feasible.
• The claimant's only discretion was as to the route she used; she didn’t have any choice about how the courier services were performed.
• The "substitution" clause – allowing a courier to send someone in her place – was very prescriptive; in effect it only allowed her to swap with couriers already on circuit.
• Although the documentation talked about "self-billing", in fact couriers didn’t have to submit invoices – the company automatically calculated payments and paid them weekly in arrears.
• There was clear inequality of bargaining power – the legalistic title of her contract and a computerised tick-box acceptance of terms and conditions on recruitment were evidence of this.
The Tribunal concluded that, in reality, the claimant was fully integrated into, and working for, the business. She was providing personal services for her employer within the definition of a "worker" during the time she was on the circuit and was therefore entitled to paid holiday in respect of that time.
Although this is not an EAT decision, and therefore does not have any official weight with other tribunals, it is an indication of the low bar set by Autoclenz in terms of having to examine the reality of the situation where there is any indication that the documentation may not reflect the true agreement between the parties.