Gig economy: new case on meaning of "worker"
Provision of services personally
Case Stuart Delivery Ltd v Augustine  EWCA Civ 1514, Court of Appeal
Facts A worked as a courier, delivering goods by moped, for SDL from November 2016 to March 2017.
SDL provides a technology platform which connects couriers with retailers through an app. Couriers may either accept individual delivery jobs or sign up for time slots. Couriers who choose to sign up for time slots commit to be in a specified location for 90% of the time slot. In return they receive a minimum hourly sum during the slot, irrespective of whether any deliveries are undertaken.
Once a courier has signed up for a slot on SDL’s app, they can indicate that they no longer want it. This allows another courier to take the slot but if none does, the original courier must complete the slot or they will face penalties.
In April 2017, A brought an employment tribunal (ET) claim against SDL, alleging that he had been unfairly dismissed and was owed notice pay, holiday pay, arrears of pay and other payments. He claimed that he was an employee under a contract of employment or was a worker. The ET found that he was a worker.
SDL appealed to the Employment Appeal Tribunal, which upheld the decision of the ET. SDL appealed further to the Court of Appeal.
Decision 1. The appeal was dismissed.
2. The statutory definition of “worker” includes a contractual requirement “to do or perform personally any work or services” for another party to the contract. 3. The ET considered that the system set up by SDL 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. That was necessary for SDL’s business model to work.
4. The Court of Appeal considered the limited right or ability of A to notify other couriers via SDL’s app that he wished to release that slot for take up by other couriers. It referred to the ET’s finding that this was not, in reality, a sufficient right of substitution to remove from him the personal obligation to perform his work personally.
5. The ET had been entitled to conclude that the limited substitution arrangements were not sufficient to displace the obligation on A to perform the work personally.