Latest case law – Is a Yodel delivery driver a worker?
5 May 2020
We have been keenly tracking and reporting on the development of case law over the years, regarding the evolving concept of a ‘worker’ and how this differs from the status of a self-employed person. Employment status is important because although a worker has less extensive rights than an employee, they do have some key rights; such as the right to be paid National Minimum Wage, the right to paid annual leave, rights to rest breaks, and protection under discrimination legislation.
An Employment Tribunal recently made a request to the European Court of Justice to assist them with making a status determination in the case of B and Yodel Delivery Network Limited (‘Yodel’). B is arguing that he is a worker, in order to make a claim for holiday pay. Holiday pay is often one of the key battlegrounds in cases like this which involve determining employment or worker status in the ‘gig economy’.
Facts of the case
B performed the service of a parcel delivery courier. He had worked solely for Yodel since July 2017. The contract between the parties defined him as a self-employed contractor. B used his own vehicle and mobile phone, and although deliveries had to be made between certain defined periods of time, B could arrange which delivery routes to take and which hours he worked.
Helpful factors to consider
The Court said that it was for the Employment Tribunal to determine B’s employment status. However, it gave some useful guidance to help with the process.
The Court said that the current European legislation must be interpreted as preventing a person engaged as a self-employed contractor as being classed as a ‘worker’ where that person has the following discretions:
- to use subcontractors or substitutes to perform the service which he has undertaken to provide;
- to accept or not accept the various tasks offered by his alleged employer, or unilaterally set the maximum number of those tasks;
- to provide his services to any third party, including direct competitors of the alleged employer, and
- to fix his own hours of ‘work’ within certain parameters and to tailor his time to suit his personal convenience (provided that, first, the independence of that person does not appear to be fictitious and, second, it is not possible to establish the existence of a relationship of subordination between that person and the business to whom they are providing services).
Applying the factors to this case
The Court noted that B appeared to have a great deal of ‘latitude’ in managing his time and duties, and that his independence did not appear to be ‘merely notional’. This did not point to a relationship where B was subordinate to Yodel. The only restriction on B’s ability to use subcontractors or substitutes was that they had to have basic skills and qualifications equivalent to B. Yodel could not exercise personal choice or preferences over a substitute, which again pointed to B’s independence. Also, under the terms of the agreement between the parties, B had a right not to accept the tasks assigned to him and could set limits on the number of tasks that he would carry out. He was also able to carry out services for direct competitors of Yodel, at the same time as carrying out services for them. Finally, although time slots were set by Yodel for delivery, the court considered that this requirement was necessary for the performance of the delivery services.
Whilst the Employment Tribunal still needs to make the decision in this matter, it would be surprising if it now goes on to conclude that B has worker status. The list of factors given by the Court are those that have long been considered in existing case law and this case serves as a useful reminder of the criteria that a person will have to meet to be determined to be a worker. As ever, each case will be decided on its own facts and the decision of one Employment Tribunal is not binding on other Tribunals.
If you are dealing with a gig economy or employment status problem, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].