What happened
Mr Augustine worked for Stuart Delivery Ltd as a courier. He could accept jobs on an ad-hoc basis, or sign up to work at particular times, which were referred to as slots. There were financial incentives to sign up to slots. If a courier either could not or did not want to work a slot which they had agreed to, they could offer it to other couriers on the platform. However, if no-one else agreed to work the slot, there were penalties if the original courier did not do so.
When the relationship ended, Mr Augustine claimed that he was a worker and as such entitled not to have unauthorised deductions made from his pay and protected under the Working Time Regulations. Stuart Delivery argued that he was not a worker. He was not obliged to perform services personally because he could send a substitute to work if he was no longer able or willing to perform one of his slots. The obligation to provide services personally is a pre-requisite for a worker relationship.
The employment tribunal and EAT upheld the claims, finding that Mr Augustine’s right to offer a slot to a substitute did not negate the requirement to provide services personally. Stuart Delivery appealed to the Court of Appeal, arguing that the tribunal and EAT had misunderstood earlier case law on the right of substitution.
The Court of Appeal dismissed the appeal. The fundamental issue was whether the claimant undertook to perform personally work or services for Stuart Delivery. In Pimlico Plumbers v Smith [2017] the Court of Appeal had considered when a right to send a substitute negatived an obligation of personal service. The key points from that judgment were:
- An unfettered right of substitution is inconsistent with an obligation to perform work personally; and
- A conditional right to substitute may or may not be inconsistent with personal service, depending on the conditions that attach to the exercise of the right.
However, it was important not to read the case as establishing strict rules about when a right of substitution will or will not negative personal service. It does not set down categories into which particular factual circumstances can be shoe-horned in order to establish whether an individual owes an obligation of personal service.
In this case the tribunal had decided that the right of substitution was not inconsistent with a personal service obligation. The system was designed to ensure that couriers worked the slots for which they had signed up. A limited right to notify other couriers who were already working for the organisation that an individual was prepared to release a slot was not a sufficient right of substitution to remove the obligation personally to perform work.
Next steps
This is another example of tribunals and courts looking to the reality of a situation when deciding issues of employment and worker status. As the Court of Appeal observed, the examples given in Pimlico Plumbers v Smith of what types of rights of substitution may or may not negative an obligation to provide service personally are just that, examples. They do not set down rigid classifications that are binding on other courts.
The real question to be addressed in every case is whether the nature and degree of any fetter on the right or ability to appoint a substitute is inconsistent with an obligation of personal performance.
Authored by Jo Broadbent and Stefan Martin.
