Court of Appeal upholds that courier driver’s limited right

News  |   25 October 2021

Written by
Elliott Flockhart, Trainee Solicitor

In Stuart Delivery Ltd v Augustine, the Court of Appeal has upheld an employment tribunal’s decision that a courier driver who could release a delivery slot and make it available to other courier drivers, satisfied the definition of ‘worker’ under s. 230(3)(b) Employment Rights Act 1996 (ERA 1996). The Court of Appeal held the courier’s right of substitution was limited enough to be consistent with personal performance of services.

Stuart Delivery Ltd developed an app that enabled courier drivers to connect with clients and opt to undertake ‘slot’ deliveries. Courier drivers were permitted to release their slot and make it available to other drivers, on the condition that, if the slot was not accepted by another driver, the original driver was liable for completing the delivery. When Augustine brought claims against Stuart Delivery Ltd, the tribunal considered whether an obligation to personally perform services existed, in order to satisfy the definition of ‘worker’ under the ERA 1996. Subsequently, the tribunal concluded that, since an individual would only be relieved of their obligation if another driver accepted their slot, which was out of the individual’s control; the release provision did not amount to an unfettered right of substitution. On appeal, the Employment Appeal Tribunal agreed with the tribunal’s decision, confirming there was no right of substitution, or alternatively, there was a limited right which fell within the fifth category of substitution identified in Pimlico Plumbers Ltd and anor v Smith (Brief 1066) – ‘a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent’.

Stuart Delivery Ltd appealed to the Court of Appeal on the question of Augustine’s right of substitution, which was subsequently dismissed. The Court of Appeal held the tribunal had considered all relevant matters when considering the question of whether any right or ability on the part of Augustine to substitute another driver was inconsistent with an obligation of personal performance, and that the tribunal was entitled to find that Augustine was a worker within the meaning of s. 230(3)(b) ERA 1996. The ability of Augustine to notify other courier drivers was not a sufficient right of substitution to remove the obligation to personally perform the service.

This decision was consistent with the Supreme Court’s decision in Pimlico Plumbers Ltd and anor v Smith (Brief 1098), which held the employment tribunal was entitled to conclude that the dominant feature of the contract was an obligation of personal performance. The ability to appoint a substitute subject to a significant limitation, did not negate that.

Advice

If you need assistance or advice on the contents of this article, please contact the Employment Team at Thackray Williams LLP 020 8290 0440.

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