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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Stuart Delivery Ltd v Augustine [2021] EWCA Civ 1514 (19 October 2021) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2021/1514.html Cite as: [2022] ICR 511, [2022] IRLR 56, [2021] EWCA Civ 1514, [2021] WLR(D) 535 |
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ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
HHJ STACEY, MS MILLS AND MRS BAELZ
UKEAT/0219/18/BA
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEWIS
and
LORD JUSTICE SNOWDEN
____________________
STUART DELIVERY LTD |
Appellant |
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- and - |
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WARREN AUGUSTINE |
Respondent |
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The respondent appeared in person
Hearing date: 12 October 2021
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Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely. The date for hand-down is deemed to be on 19 October 2021.
LORD JUSTICE LEWIS:
INTRODUCTION
THE LEGISLATIVE FRAMEWORK
"(3) In this Act "worker" (except in the phrases "shop worker" and "betting worker") means an individual who has entered into or works under (or, where the employment has ceased, worked under)—
(a) a contract of employment, or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker's contract shall be construed accordingly."
THE FACTUAL BACKGROUND
The Arrangements for Couriers
The Claimant Becomes a Courier
The Proceedings.
(1) the claimant was employed by the respondent under a contract of employment; if not
(2) was he a worker within the meaning of section 230(b) of the Act, or
(3) whether the respondent was a client or customer of any business or profession carried on by the claimant.
The Employment Tribunal's Decision
"Having regard, therefore, to the entire factual matrix before the Tribunal, the first element of section 230(3)(b) to be considered is whether or not there was a contract whereby the Claimant undertook to do or perform personally any work or services for any other party to the contract?.... ."
"30. The Respondent argues that there is no contractual obligation that the Claimant personally turn up and perform any services, even having signed up to cover any given slot, because, (i) even if there are consequences (including what it characterises as the relatively minor risk of being taken off the app), he is still not obliged to turn up and (ii) he is, in any event, free to provide a substitute for any slot which he changes his mind about covering. The Respondent contends: that there was an unfettered right to substitute another person to do the work (the first category set out in the Pimlico Plumbers case in the Court of Appeal); failing that, that there was a conditional right to substitute another person (category 2) and in any event the Respondent relies on category 4, that there was a right of substitution limited only by the need to show that the substitute is as qualified as the Claimant to do the work, whether or not that entails a particular procedure."
"… the reality was that the Claimant risked losing financially (performance rewards and the loss of the guaranteed £9 per hour for refusing more than one delivery request during one slot), a poor performance score (missing slots/jobs attracts 30% of the performance rating) potential removal of his right to register for future slots… and eventually off-boarding from the app…."
and further:
"The entire intention of the Respondent's stick and carrot system of rewards and punishments was to ensure an optimally reliable supply of couriers to meet optimum demand of Users in 'hot zones' at times of highest demand as predicted by very detailed market research. The whole business model is predicated upon this precise balancing act. If the rewards and penalties were not real, and not perceived to be so by couriers, it would not work. Couriers would abandon signed-for slots with impunity and the users would not be happy".
"33. As to the right to substitute another to take over the slot, the Tribunal noted the following factors:
33.1 There is no reference to a right of substitution in the written contract, the GCU.
33.2 Strictly speaking, the Release Notification of an unwanted slot for circulation on Staffomatic among potentially interested other couriers with the same mode of transport, is not the right to send a substitute chosen by oneself, even with the proviso of only being able to send a person with all of the correct vehicle and personal paperwork and an up to date background check.
33.3 Another courier taking up the slot would be unknown to the Claimant and it was not within his right to choose nor put forward a given individual.
33.4 If no one took up the slot, the Claimant would either have to work it or face the consequences set out above.
33.5 This system cannot reasonably be described as 'an unfettered right to substitution'.
33.6 If it constitutes a right to substitution at all, it is conditional upon another courier, already on the Respondent's app and with the same mode of transport as the Claimant, willingly volunteering to take over the slot released. The Tribunal accepted the Respondent's evidence that a large proportion of couriers did take advantage of the Release Notification scheme and that the Claimant himself took up some of the slots released by others. However, it was also the Respondent's evidence that there were often 300 to 500 (about 10%) of slot hours per week left unclaimed by anyone and therefore there was far from any guarantee that a courier would get a colleague volunteering to take over any given unwanted slot.
33.7 This could be said to fall within the fifth category of the Pimlico Case, absolute and unqualified discretion to withhold consent; that the other person who has an absolute or unqualified discretion to withhold consent; that other person being one of the Claimant's fellow couriers with the same mode of transport.
33.8 It cannot be said to fall within the fourth category of the Pimlico Case since the right is not merely limited by the need to show that the substitute is as qualified as the Claimant to do the work, because it is also limited by the willingness of any of the Claimant's equally well-qualified motorbike courier colleagues to volunteer to take his slot.
34. Taking all of these factors into account, the Tribunal concluded that, however the slot Release Notification system is defined, it does not fall within the ambit of arrangements which are necessarily inconsistent with the obligation to perform personally. In reality, the Claimant, once having signed up for a slot, was obliged to perform personally because there was a real risk of negative sanctions for not doing so and his right of substitution to remove from him that personal obligation to perform his work personally for the Respondent."
"1. …. the Claimant was a 'worker' of the respondent within the meaning of section 230(3)(b) of the [Act] and other materially identical legislation, while he was working as a moped delivery rider on allocated slots.
"2. The Claimant was not an employee of the Respondent within the meaning of section 230(1) of the [Act]."
The Appeal to the Employment Appeal Tribunal
"Worker status: substitution
62. It is common ground that the Tribunal correctly identified the significance of understanding the extent of the Claimant's powers of substitution in deciding the worker point, and it correctly identified the key passages in Pimlico Plumbers. Mr Carr accepts that he cannot challenge the finding that the Claimant did not have an unfettered right of substitution. He is right that the Tribunal has misunderstood the person whose consent is required for the fifth category – it cannot refer to the proposed substitute, but refers to the employer or person for whom the work will be done. The difficulty for the Respondent however is that on the facts as found by the Tribunal the Respondent had an absolute and unfettered right to withhold consent since only the couriers it had accepted onto their pool could use the Staffomatic app to sign up for slots a fellow courier wished to relinquish. The Claimant had no control whatsoever over who, if anyone, would accept a slot he had signed up for and no longer wished to work. The Tribunal's primary finding is correct – it is not a right of substitution at all. It is merely a right to hope that someone else in the pool will relieve you of your obligation. If not, you have to work the slot yourself. You cannot, for example, get your mate to do it for you, even if s/he is well qualified. All you can do is release your slot back into the pool.
63. The Tribunal have therefore not erred in their primary finding that there was no substitution right and, in the alternative, that the ability to offer the slot to others fell within the fifth category identified in Pimlico Plumbers albeit for different reasons to those identified by the Tribunal. The ground of appeal therefore fails."
THE APPEAL
(1) The employment tribunal erred as it:
(a) misconstrued or misunderstood the guidance given by the Court of Appeal in Pimlico Plumbers that the right of substitution could not be relied upon as negativing an obligation of personal performance when its exercise was subject to the consent of another person who had an absolute and unqualified discretion to withhold consent. In paragraph 33.7 and 33.7 of its reasons, the employment tribunal erroneously held that the case fell within the fifth category identified in Pimlico Plumbers as the claimant's right to substitute was subject to the consent of the substitute couriers whereas the Court of Appeal intended the reference to be consent on the part of the putative employer, not the consent of the potential substitute; and
(b) wrongly held that the case could not fall within the fourth category in the guidance in the Court of Appeal decision in Pimlico Plumbers as the right was limited by the willingness of the substitute to volunteer to undertake the work.
(2) the Employment Appeal Tribunal erred in law:
(a) in upholding the employment tribunal decision on the basis that the respondent had the absolute and unqualified right to withhold consent as only couriers that it had accepted into their pool of couriers could use the respondent's app to sign up for slots. That wrongly confused the question of how the pool of available substitutes came to made up with the separate question of how a substitute came to take the place of the claimant when the claimant did not wish to undertake work that he had signed up to do;
(b) in finding that there was no right of substitution as the claimant could not control the identity of the substitute;
(c) in finding that it was relevant that the claimant would have to work the slot himself if a substitute could not be found; and
(d) in holding that the employment tribunal had made a primary finding that there was no right to substitute at all.
SUBMISSIONS
DISCUSSION
Preliminary Observations
The Issue
(1) a contract of employment; or
(2) a contract where the individual undertakes to do or perform personally any work or services for another person who is a party to the contract and whose status is not by virtue of the contract a client or customer of any profession or business undertaking carried on by the individual.
"The sole test is, of course, the obligation of personal performance: any other so-called test would be an inappropriate usurpation of the sole test. But there are cases, of which the present case is one, in which it is helpful to assess the significance of [the claimant] Mr Smith's right to substitute another Pimlico operative by reference to whether the dominant feature of the contract remained personal performance on his part."
The case law
"84. Some of those cases are decisions of the Court of Appeal, which are binding on us. Some of them are decisions of the appeal tribunal, which are not. In the light of the cases and the language and objects of the relevant legislation, I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance."
"29. The judge concluded that the right to substitute another Pimlico operative did not negative Mr Smith's obligation of personal performance. She held that it was a means of work distribution between operatives and akin to the swapping of shifts within a workforce."
"34. The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smith's contracts with Pimlico was an obligation of personal performance. To the extent that his facility to appoint a substitute was the product of a contractual right, the limitation of it was significant: the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done. The tribunal was entitled to conclude that Mr Smith had established that he was a limb (b) worker—unless the status of Pimlico by virtue of the contract was that of a client or customer of his."
"118. It is firmly established that, where the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed, the question of whether work is performed by an individual as an employee (or a worker in the extended sense) or as an independent contractor is to be regarded as a question of fact to be determined by the first level tribunal. Absent a misdirection of law, the tribunal's finding on this question can only be impugned by an appellate court (or appeal tribunal) if it is shown that the tribunal could not reasonably have reached the conclusion under appeal: see Lee Ting Sang v Chung Chi-Keung [1990] ICR 409, 414–415 ; [1990] 2 AC 374, 384–385 ; Clark v Oxfordshire Health Authority [1998] IRLR 125, paras 38–39 ; the Quashie case, para 9.
119. On the facts found in the present case, and in particular those which I have emphasised at paras 94–101 above, I think it clear that the employment tribunal was entitled to find that the claimant drivers were "workers" who worked for Uber London under "worker's contracts" within the meaning of the statutory definition. Indeed, that was, in my opinion, the only conclusion which the tribunal could reasonably have reached.
120. It does not matter in these circumstances that certain points made by the employment tribunal in the reasons given for its decision are open to criticism, nor is it necessary to discuss such particular criticisms, since none of the errors or alleged errors affects the correctness of the tribunal's decision. I agree with the majority of the Court of Appeal that there are some points made by the employment tribunal which are misplaced (see in particular para 93 of the Court of Appeal's judgment [2019] ICR 845). I also agree with the analysis set out at paras 96 and 97 of that judgment of the 13 considerations on which the tribunal principally based its finding that drivers work for Uber. I agree with the majority of the Court of Appeal that those considerations, viewed in the round, provided an ample basis for the tribunal's finding"
Application of the law to the present case
"29. Having regard, therefore, to the entire factual matrix before the Tribunal, the first element of section 230(3)(b) to be considered is whether or not there was as contract whereby the Claimant undertook to do or perform personally any work or services for any other party to the contract?"
"was not, in reality, sufficient right of substitution to remove from him that personal obligation to perform his work personally for the Respondent".
Lord Justice Snowden
Lord Justice Moylan