Jurisdictional Points – Worker, Employee or Neither – CONTRACT OF EMPLOYMENT – Whether established
The Tribunal had not erred in concluding that when Mr Augustine, a delivery courier, was undertaking fixed hours ‘slots’ for the Respondent, Stuart Delivery Limited, he was engaged in the capacity of a worker. During the slot the Claimant was under the control of the Respondent, was unable to leave the zone he had agreed to operate in and required to undertake the deliveries offered to him in return for a guaranteed hourly wage. He could not hold himself out as available to other delivery companies during the period (typically 3 hours) of a slot.
The Tribunal had correctly considered the arrangement whereby the Claimant could release a slot he had signed up to back into the pool of approved couriers via the Staffomatic app. Its finding that the Claimant would only be released from the obligation of performing the slot himself if another courier signed up for it and that he had no control over whether, or who, picked up the slot he had released, did not amount to a right of substitution, or not one that was inconsistent with limb (b) worker status, was correct. Although there was some confusion as to why the facts in this case fell within category 5 of the situations identified by the Sir Terence Etherington MR in Pimlico Plumbers v Smith CA [2017] IRLR 323, paragraph 84, the overall conclusion was correct. Pimlico Plumbers v Smith applied and followed.
The Tribunal’s conclusion that the Claimant was not in business on his own account and the Respondent was not a customer of the Claimant’s delivery business could not be faulted on their findings of fact. Jivraj v Hashwani [2011] UKSC 40 applied and followed.
The Tribunal had correctly found that the Claimant was not employed on a global or umbrella contract as an employee. Although the Tribunal had not addressed the Claimant’s alternative argument that he was an employee of the Respondent whilst working on slots for the duration of the slot itself, it was an entirely academic point in this case. On the facts of this case, no additional benefit would accrue to the Claimant if he were labelled an employee, rather than a worker, on each occasion he undertook a slot. It was therefore unnecessary to refer the matter back to the Tribunal for determination.
The Tribunal’s decision that the Claimant had undertaken a number of deliveries on an ad hoc basis was not perverse. The high threshold of perversity was not met (Yeboah v Crofton [2002] EWCA Civ 794) and the finding had no relevance to the issues in the case in any event.
[2019] UKEAT 18 – 0219 – 0512
Bailii
England and Wales
Citing:
Cited – Pimlico Plumbers Ltd and Another v Smith CA 10-Feb-2017
The plumbers appealed against a finding that the plumbers it employed were workers and entitled toassociated benefits.
Sir Terence Etherton MR summarised the case law and said: ‘ I would summarise as follows the applicable principles as to the . .
Cited by:
Cited – Stuart Delivery Ltd v Augustine CA 19-Oct-2021
Obligation to Perfom Work Personally was Critical
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.646869
