Court of Appeal considers whether gig economy courier was a worker

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In Stuart Delivery Ltd v Augustine, the Court of Appeal considered whether a gig economy courier was a worker.

Warren Augustine worked as a courier for Stuart Delivery Ltd from November 2016 to March 2017.

Stuart provides a technology platform which connects couriers with retailers through an app. Couriers may either accept individual delivery jobs or sign up for time slots. Couriers who choose to sign up for time slots commit to be in a specified location for 90% of the time slot. In return they receive a minimum hourly sum during the slot, irrespective of whether any deliveries are undertaken.

Once a courier has signed up for a slot on Stuart’s app, they can indicate that they no longer want it. This allows another courier to take the slot but if none does, the original courier must complete the slot or they will face penalties.

In April 2017, Mr Augustine brought an Employment Tribunal claim against Stuart, alleging that he had been unfairly dismissed and was owed notice pay, holiday pay, arrears of pay and other payments. He claimed that he was an employee under a contract of employment or was a worker.

There was a preliminary hearing to decide Mr Augustine’s employment status. The Employment Tribunal determined that he was a worker, but not an employee.

Stuart unsuccessfully appealed to the Employment Appeal Tribunal. Stuart appealed again, and the case reached the Court of Appeal.

It’s important to note that the statutory definition of worker includes a contractual requirement “to do or perform personally any work or services” for another party to the contract. The Court of Appeal noted that the “employment tribunal considered that the system set up by [Stuart] was intended to ensure that [Mr Augustine] did carry out the work and, in particular, that he did turn up for the slots that he had signed up for and do the delivery work during those slots. That was necessary for [Stuart’s] business model to work”.

The Court of Appeal considered “the limited right or ability of [Mr Augustine] to notify other couriers via [Stuart’s] app that he wished to release that slot for take up by other couriers” and quoted the employment tribunal’s finding that this “was not, in reality, sufficient right of substitution to remove from him that personal obligation to perform his work personally” for Stuart.

The Court of Appeal held that the Employment Tribunal had been entitled to conclude that the limited substitution arrangements were not sufficient to displace the obligation on Mr Augustine to perform the work personally.

Stuart’s appeal was dismissed.