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Wednesday, September 16, 2020
Cycle Couriers are Wheelie ‘Workers’.
A recent finding of an Employment Tribunal has added fuel to the call for greater clarity concerning the definition of a “worker”.
This case O’Eachtiarna and others v CitySprint (UK) involved five cycle couriers who were engaged by CitySprint. The couriers claimed they were entitled to holiday pay as they were “workers” for the company a point that was contested by the respondent.
2017 saw a similar claim against CitySprint. Dewhurst v CitySprint UK Ltd the tribunal ruled that a bicycle courier was a “worker” in contradiction of the contractual documents describing her as a self-employed contractor. Ms Dewhurst succeeded in her claim for holiday pay leading to an entitlement to other employment rights such as rest breaks and the national minimum wage.
As a result of this decision, CitySprint introduced new contracts for all couriers engaged by the business. These revised terms sought to remove the option of ‘personal service’ from the relationship and permitted the couriers an option to supply a substitute in the event they were unable to complete the job. The motivation for the company removing the ‘personal service’ element from the contract was due to it indicating that the couriers were engaged on a self-employed basis, a point they were keen to re-establish.
Interestingly the Tribunal found that the substitution option for a courier was OK in theory but in reality, those engaged on a job were the ones who continued to provide personal
service. It was proven that the substitution right had not been exercised, thereby personal performance was still a major feature in their working arrangements and as such the couriers were still considered ‘workers’.
What is of significant interest, in this case, is the approach of the Tribunal in seeking the practical “day to day” reality of the working relationships of the couriers as opposed to a formally drafted and signed contract. If there is a disconnect between the contract and “real life” it can immediately invalidate any such agreement. In essence, the paperwork needs to match the practicalities of the role and its relationship with customers and company engaging their services.
Key points
- Agreements put in place between a business and its workforce must be crystal clear and reflect the reality of the interplay i.e. customer, company and service supplier. Thought should be given to the checks and balances and control imposed by a business over what those engaged in the business do, how they perform the role and when it is delivered. Too greater level of control is a red flag with regards to the classification of the individuals from freelancers to workers.
- Regardless of the control of the tasks being undertaken, if there is no practical opportunity to source a substitute for work there rests a strong argument for the definition of the role being one of a worker and not self-employed.
- Self- employment typically carries its own financial and associated risks requiring a level of insurance and accountability. This should be clearly set out in any agreement and if lacking could point to a worker rather than being self-employed.
Written by Robert Gibson, Senior Consultant - Employment Law
Robert is a Senior Consultant at Samuel Phillips and specialises in employment and business matters. He advises in relation to employment and shareholder disputes, including pensions and related issues.
