Worker status and the right of substitution

07 January 2020

Workers don't have as much employment protection as employees but do have important legal rights such as paid holiday and the right to be paid the national minimum wage.

Employment tribunals will look at multiple factors when deciding whether an individual is a worker or self-employed. The main ones are

  • Control – How much control does the company exert over the individual?
  • Mutuality of obligation – Is there an obligation for the company to provide work and the individual to accept it?
  • Integration – How integrated into the business is the individual?
  • Personal service – Does the individual have to do the work themselves or can they send someone else instead?
  • Running their own business - The courts will assess whether the individual is running their own business, rather than working for someone else's business.

The issue of personal service is one which often arises in the employment tribunal. Will a contractual right of substitution – the right to send someone else to do the work – automatically rule out worker status? In Stuart Delivery v Augustine, Mr Augustine was a delivery driver. He signed up for 'slots' when he agreed to be online for a certain period in a certain location in return for a guaranteed minimum payment. He couldn’t work for anyone else during these slots. He had to remain in the agreed area and accept deliveries that were offered. Once signed up for a slot, he could only get out of doing it if another courier in the pool agreed to cover it. Otherwise Mr Augustine faced financial penalties or even removal from the platform.

The EAT said that this right to 'release a slot' back into the pool was not a free right of substitution. Only approved couriers could take the slot off Mr Augustine. He had no control over who, if anyone, would accept it. It wasn’t a right of substitution at all, rather a right to hope that another courier would release him from that obligation. If no one did, the obligation remained his. The EAT agreed that he was a worker during these periods, despite the ability to release the slots back into the pool of couriers.

Worker status cases are always fact specific. However, this decision follows other appeal judgments in showing that limited rights of substitution will not necessarily defeat a worker status claim.


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