CA finds courier with limited right to substitute was a worker

Monday 1st November 2021

The CA has held, in Stuart Delivery Ltd v Augustine, that a courier with the ability to release a delivery slot to another courier, was still obliged to personally perform services and therefore satisfied the definition of worker under 230(3)(b) ERA 1996.

Mr Augustine was engaged by SD Ltd as a courier. SD Ltd used a mobile app through which couriers opt to carry out ‘ad hoc’ or ‘slot deliveries’. Slot deliveries require couriers to be available to personally deliver goods by moped during the allocated time and they are paid a minimum rate of £9 per hour. Couriers have the option to release their slots to other couriers but if the slot is not filled, the original courier must fulfil the obligation or face penalties for missing the slot.

The ET held that Mr Augustine was a worker because he was required to personally perform the delivery services and did not have an unfettered right of substitution. While Mr Augustine was able to offer his slots to other couriers, he had no control over whether they would be filled and remained personally responsible until they were filled. It was merely a right to hope that someone else in the pool would pick up the obligation. The EAT agreed with the ET’s finding that there was no right of substitution or alternatively that there was only a limited right. SD Limited appealed.

The CA dismissed the appeal, holding that the ET was entitled to find that Mr Augustine was a worker. The ET had correctly identified that the issue to be determined was whether Mr Augustine was under an obligation to personally perform the work or provide the services. When assessing whether any ability on the part of Mr Augustine to provide a substitute was inconsistent with an obligation of personal performance, it had considered all relevant matters, including the written terms (which did not refer to a right of substitution) and the practical operation of the arrangements. SD Limited’s system of penalties and rewards was intended to ensure that Mr Augustine turned up for his chosen slots and carried out the delivery work. The CA considered that the limited right to notify other couriers via the app that Mr Augustine wished to release a slot was not in reality a sufficient right of substitution to remove the obligation to perform the work personally.

The CA considered this consistent with the SC decision in Pimlico Plumbers Ltd & anor v Smith where the ET had been entitled to find that the dominant feature of the contract was an obligation of personal performance and the limited ability to appoint another Pimlico operative as a substitute did not negate that.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.