The Court of Appeal has decided that a courier’s status was that of a worker in the case of Stuart Delivery Ltd v Augustine.
The courier was contracted with the company to offer a time slot to cover for other couriers and was obliged to perform this service personally. The Court of Appeal decided he was a worker and hence despite the limited conditional right to substitute the service was deemed to have the protection of employment law.
The facts of the case are that Mr Augustine worked a courier and agreed to a time slot to be available for work to cover for other couriers. If the courier signed up but later did not want the slot, he was able to upload on the company courier website that the slot was available to other couriers. If there was no substitute to cover the courier would be fined by the company for being unavailable.
Mr Augustine terminated the contract and argued he was a worker and such deductions from his wages were unlawful as he had not authorised them. The company argued he was not a worker and under no obligation to provide a personal service as he had the contractual right to substitute another courier if he could not work his slot.
Employment Tribunal
The Employment Tribunal and Employment Appeal Tribunal found in favour of Mr Augustine. It said the contractual right to have a substitute for his slot did not take away his personal obligation to provide the service. An appeal was made to the Court of Appeal on the basis the Employment Appeal Tribunal had failed to follow earlier case law on the point of the right to substitute.
The Court of Appeal also rejected the appeal. It followed the Court of Appeal decision in Pimlico Plumbers v Smith 2017. The case made a distinction between unrestrained rights of substitution and conditional right of substitution. An unrestrained right of substitution is contradictory with an obligation to perform personal service. A conditional right to substitution depending on its conditions may or may not contradict personal service. In Stuart Delivery Ltd v Augustine, the Court of Appeal held the limited contractual right for the courier to find a substitute for their slot was not an adequate right to remove the personal obligation to perform the service. The Court of Appeal had looked at the truth of the facts of the situation to determine Mr Augustine’s employment status. The guidance under in Pimlico Plumbers v Smith directs each case must be decided based on its own reality.
This article is for guidance only and legal advice. If you have an employment issue please contact the HR advice line help on 01455 852 028.
