Impact of Technology on Employment Status – A Courier’s Ability To Release Job Is Not Unfettered Right To Substitution

17th December 2019 by

The Employment Appeal Tribunal (EAT) handed down judgment on 5 December 2019 on the case of Stuart Delivery Ltd v Mr Warren Augustine UKEAT/0219/18/BA regarding employment status and the use of technology.

The EAT held that an Employment Tribunal (ET) was entitled to find that a delivery courier was a worker under S.230 (3)(b) of the Employment Rights Act 1996 (ERA 1996) , while undertaking deliveries that he had signed up for through the employer’s app. Although the courier could release the delivery job through the app, this depended on whether another courier would agree to take it on; if not, the original courier would be required to undertake the work or face sanctions. The EAT held that the possibility of releasing a job was therefore not an unfettered right of substitution such as to undermine “worker” status.

So, what impact is technology having on employment status?

In this case, SD Ltd refers to itself as a technology platform connecting couriers with clients via a mobile app, similar to Uber. Couriers were able to undertake ad-hoc deliveries, for which they committed in advance, as well as being available in a certain area for a certain period of time. The courier who was signed up for a slot would be guaranteed a minimum rate of £9 per hour for the duration of the shift, irrespective of deliveries carried out. The courier must, however, remain in the zone for at least 90% of the time and refuse no more than one delivery.

The slot system used by SD Ltd guaranteed a pool of couriers available at the times of high demand, meaning that should a courier cancel the job, another courier in the pool could accept. However, if no one accepted the released slot, the original courier remained liable for completing it.

One of the key issues was whether a courier was under an obligation to perform services personally, as required under the worker definition in S.230 (3)(b) ERA 1996 or whether the ability to release a slot via the app detracted from any obligation of personal performance. The ET determined that the release procedure did not amount to an unfettered right of substitution such as to undermine the obligation of personal performance.

The EAT dismissed the appeal, and agreed with the ET that there was no right of substitution, since substitution depended on someone else in the pool taking on the obligation; failing which, the original courier was obliged to work. This decision reminds us that the EAT is demonstrating a continued Claimant friendly approach, as seen with the Uber case when faced with alternative employment structures created by technology to ensure workers’ rights are adequately protected.

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