The Court of Appeal has upheld the decision of the employment tribunal that a courier, who was able to release his delivery slot to another courier via the company's app, was nevertheless under an obligation to personally perform work and therefore had "worker" status under the Employment Rights Act 1996 (ERA).
- The right to provide a substitute, and any limits on that right, remain key issues of fact in determining worker status: these issues can be instrumental in determining the key question of whether the individual is under an obligation personally to perform work or provide services.
- The tribunal found that the company's operation was set up to ensure that its couriers turned up to the delivery slots they had signed up for and carried out the deliveries. Whilst the claimant was able to release his delivery slot to another courier via the company's app, his right in doing so was fairly limited - he could not choose who would take up his slot, and if there was no volunteer, he would have to complete the slot himself or be subject to penalties. The tribunal was entitled to hold that this limited right of substitution did not remove the claimant's obligation personally to perform the work.
- As a note for lawyers, the court also commented that it was unhelpful to try to "shoehorn" the facts of every case into one of the five substitution categories that was set out in the Court of Appeal's decision in Pimlico Plumbers v Smith. The court considered that the guidance in that case was intended to be a summary of the existing case law at the time rather than a non-exhaustive checklist in determining worker status.
Stuart Delivery Ltd v Augustine, Court of Appeal