Stuart Delivery Ltd v Warren Augustine
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Snowden,Lord Justice Moylan |
| Judgment Date | 19 October 2021 |
| Neutral Citation | [2021] EWCA Civ 1514 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2020/0131 |
[2021] EWCA Civ 1514
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
HHJ STACEY, MS MILLS AND MRS BAELZ
UKEAT/0219/18/BA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
Lord Justice Lewis
and
Lord Justice Snowden
Case No: A2/2020/0131
Bruce Carr Q.C. (instructed by DLA Piper UK LLP) for the Appellant
The respondent appeared in person
Hearing date: 12 October 2021
Approved Judgment
INTRODUCTION
This appeal concerns the status of a courier delivering goods by moped. The question on the appeal is whether an employment tribunal was entitled to find that the claimant, Mr Augustine, was a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996 (“the Act”), and, in particular, that he was a person who undertook to perform work or services personally pursuant to a contract with the respondent, Stuart Delivery Limited. I will refer to Mr Augustine and Stuart Delivery Limited as the claimant and the respondent respectively, as they were in the tribunals below.
The employment tribunal, Employment Judge Stewart, held that the claimant was a worker. Once the claimant had signed up for a time slot during which he was to be available to deliver goods by moped, he was required to perform those services personally. Furthermore, the claimant's ability to release a slot to other couriers via the respondent's app was not a sufficient right of substitution to remove the obligation on the claimant to perform his work personally. The Employment Appeal Tribunal upheld that decision.
The respondent contended that the employment tribunal erred in its understanding of the principles governing the circumstances in which the ability of a person to appoint a substitute to carry out the work means that the person is not under any obligation personally to perform the work. Consequently, it contended, the employment tribunal failed properly to consider whether the extent of the claimant's right to use a substitute courier for one of his slots meant that he was not required to perform the work personally and so was not a worker for the purposes of the relevant legislation. It contended that the matter should be remitted to the tribunal to re-consider.
THE LEGISLATIVE FRAMEWORK
The Act confers certain rights on workers. These include the right of a worker not to be subjected to unlawful deductions from wages (section 13 of the Act) and the right not to be subjected to a detriment on the ground that the worker is, broadly, enforcing his rights under the Working Time Regulations 1998 (see section 45K of the Act).
A “worker” is defined in section 230(3)(b) of the Act in the following way:
“(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—
(a) a contract of employment, or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker's contract shall be construed accordingly.”
Other rights are conferred upon workers by the National Minimum Wages Act 1998 (“the 1998 Act”) and the Part-time Workers (Prevention of Less Favourable Treatment Regulations 2000 (“the Regulations”). The definition of “worker” for that other legislation is materially identical to that set out in section 230(b) of the Act: see section 54 of the 1998 and regulation 1(2) of the Regulations.
THE FACTUAL BACKGROUND
The Arrangements for Couriers
The respondent is one of 25 subsidiaries of a French company which operates in the field of logistics delivery and storage. It was formed in 2016 and is responsible for operations in the United Kingdom. It created a technology platform connecting couriers with retailers via an app developed by the respondent.
There was a document, the general conditions of use (“the GCU”), which was said to be a contract between the respondent, the courier, and the user. That set out detailed provisions for how the system was to operate. The employment tribunal found a disparity between the written terms and the other evidence as to how the contractual arrangements were operated in practice. It therefore considered all of the evidence regarding the realities of how the system operated, including an examination of the written terms of the GCU, in order to establish the entire and true nature of the agreement between the claimant and the respondent (see paragraph 27 of the employment tribunal's reasons). It found the following material facts relating to the operation of the system.
Couriers who entered into arrangements with the respondent were able to accept individual delivery jobs and be paid for that job. The delivery fee was fixed by reference to the distance travelled by the courier and the mode of transport. Couriers could also sign up for one or more time slots via a “Staffomatic” facility on the respondent's app. The slots were released by the respondent to couriers on a Thursday of each week and covered the zones with the highest concentration of users at the times of projected highest demand. Couriers were encouraged to sign up for these slots and approximately 93% of couriers worked on slots.
Couriers who signed up for a time slot committed themselves to be in a certain area for 90% of the time comprised within that slot. In return, the courier was guaranteed a minimum £9 an hour for each slot for which he signed up (irrespective of whether he undertook any deliveries). If the courier did not remain within the area for 90% of the slot time, or he if logged off and was not available for more than 6 minutes per slot, or if he refused more than 1 delivery job during a slot, the courier would not receive the guaranteed minimum hourly payment for that slot. In addition, the respondent paid delivery rewards to couriers who achieved a certain number of deliveries a week but, if he failed to take up 2 or more of his slots in a week, the courier would not qualify for the delivery awards.
A courier who had signed up for a slot was able to send a notice via the Staffomatic section of the respondent's app indicating that he wished to give up a particular slot that he had signed up for. Another courier, who had a contract with the respondent and had signed up to the respondent's app, could then offer to take up the slot and a message to that effect was sent to the courier offering to release the slot. If no other courier offered to take the slot, the courier had to complete the slot or would face penalties for missing the slot.
Once a courier accepted a delivery job, the CGU provided that he could only cancel the delivery in three specified circumstances, namely if the goods exceeded certain specified dimensions, there was no response to the courier's telephone calls when he contacted the client to carry out a delivery, or the courier could not carry out the delivery because of any force majeure event such as an accident.
The Claimant Becomes a Courier
On 26 November 2016, the claimant applied on the respondent's website to become a courier. He was invited to a 10 minute interview and asked to provide all vehicle documentation, proof of address and the right to work in the United Kingdom, photographs showing the size of the delivery box on his moped and confirmation that it met the respondent's requirements, and details of his bank account and smart phone. Having passed the interview, he filled in a form to enable criminal background checks to be carried out. He then attended a session lasting about 90 minutes consisting of a power-point presentation setting out how courier arrangements worked. Between about 23 November 2016 and 5 March 2017, the claimant was a courier operating in accordance with the arrangements described above.
The Proceedings.
On 9 April 2017 the claimant presented a complaint to the employment tribunal 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 within the meaning of section 230(3)(b) of the Act and other relevant legislation.
By an order dated 12 June 2017, the employment tribunal ordered a preliminary hearing to decide if:
(1) the claimant was employed by the respondent under a contract of employment; if not
(2) was he a worker within the meaning of section 230(b) of the Act, or
(3) whether the respondent was a client or customer of any business or profession carried on by the claimant.
The Employment Tribunal's Decision
The employment tribunal held that the claimant was not an employee as he was not employed under a contract of employment. The Employment Appeal Tribunal dismissed the claimant's appeal against that finding. Although the claimant sought permission to appeal to this Court against that finding, permission to appeal was refused. The finding that he was not an employee therefore and so not within section 230(3)(a) of the Act cannot therefore be challenged.
The employment tribunal then considered whether the claimant was a worker within the meaning of section 230(b) of the Act. It identified the issue at paragraph 29 of its judgment in the following terms:
“Having regard, therefore, to the entire factual matrix before the Tribunal, the first...
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