To establish an individual’s employment status, tribunals have to consider certain tests. In Stuart Delivery Ltd v Augustine the Employment Appeal Tribunal (EAT) held that a motorbike courier for a delivery company was a worker as he was obliged to perform the work personally and had no effective right of substitution.
Mr Augustine was a motorbike delivery courier for Stuart Delivery Ltd. One of the ways in which he could obtain work was to log onto the company’s app and commit in advance to being online in a certain geographical location for a specific amount of time. This guaranteed a minimum payment of £9 per hour. It was commonly known as working a "slot".
If Mr Augustine changed his mind about working a slot he had committed to, he could use an app to release the slot to other couriers via an app. However, if no-one accepted it, then he remained liable for completing it.
Two missed slots a week made a courier ineligible for a performance-related bonus and detrimentally impacted on their Courier Performance Score. If the courier's score or rating fell below what was considered to be a reasonable average, they were given a brief period in which to improve otherwise they would be prevented from accessing the service and undertaking work.
Having accepted a slot, the courier was required to remain within the zone for the entire slot (unless the delivery took them beyond the zone). If a courier logged off for more than six minutes, or refused more than one job during the slot, they would not then qualify for the minimum hourly payment.
Mr Augustine brought a number of claims against the company and a preliminary hearing was listed to determine his employment status and in particular whether he was an employee, a worker or self-employed.
Section 230(3) Employment Rights Act (ERA) states that a worker is an individual who either (a) works under a contract of employment; or (b) “any other contract … whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not … that of a client or customer of any profession or business undertaking carried on by the individual”.
The tribunal held that there was insufficient mutuality of obligation between Mr Augustine and the company for him to be an employee. However, in respect of applying section 230(3) ERA it found that when Mr Augustine worked slots he was not working in business on his own account but was a worker as he was obliged to perform the work personally. It also found there was no effective right of substitution.
The company argued that Mr Augustine was not a worker as he had the ability to release his slot to other couriers and this amounted to a right to substitute. However, the tribunal considered that this was not the character of a substitution clause that would deny him "worker" status.
The EAT agreed that Mr Augustine was a worker and not in business on his own account. Once he had accepted a slot, he could not leave the zone, could not reject jobs and could not undertake courier jobs for other delivery companies.
The EAT also agreed (albeit for slightly different reasons) that there was not a right of substitution at all, but only a right to hope that someone else in the pool might relieve him from the obligation to work. In effect, as the couriers had no control over who might accept the slot, all that they could do was to release it back into the pool and hope for the best.
Finally the EAT upheld the decision that Mr Augustine was not an employee.