In Dewhurst v CitySprint UK Ltd, the London Central Employment Tribunal has ruled that a bicycle courier was a ‘worker’ of the firm for the purposes of the Employment Rights Act 1996, despite the contractual documents describing her as a ‘self-employed contractor’. The case is a further example of a tribunal finding that a so-called ‘gig economy’ worker can claim employment protections, following the ruling in favour of Uber workers in October 2016.
D works as a cycle courier for City Sprint Ltd, which operates a fleet of between 50 and 60 bicycle couriers in London. She typically, though not always, works four days a week from 9:30 am to 6:30 pm. During that time she moves from job to job, with breaks between jobs ranging from ten minutes to an hour. At the start of the day she speaks to a controller at City Sprint Ltd and logs into the company’s electronic tracking system, Citytrakker, and only logs out at the end of the day when she goes home. The Citytrakker system tracks couriers’ whereabouts and helps controllers to assign jobs. Controllers and couriers remain in contact through radio and mobile phones throughout the day.
City Sprint Ltd recruits couriers under a document entitled ‘Confirmation of Tender to Supply Courier Services to Citysprint Ltd’, which purports to treat them as self-employed contractors. When the document is signed at City Sprint Ltd’s premises, the courier is required to read and acknowledge a number of key terms in an electronic tick list on a computer. These terms make clear that the courier is under no obligation to provide services and City Sprint Ltd is under no obligation to provide work; that the courier may send a substitute to work in his or her place, so long as the substitute fulfils certain criteria; that if the courier does not work he or she will not get paid; and that the courier is not entitled to holiday, maternity or sick pay. Once they start work, couriers are paid by the job. Although City Sprint Ltd refers to the payment process as a self-billing and invoice system, in practice couriers do not need to submit invoices for individual jobs – instead, City Sprint Ltd automatically calculates payments due and pays them weekly in arrears.
What happened next…
D succeeded in a tribunal claim for two days’ holiday pay, the tribunal finding that she was a ‘worker’ within S.230(3)(b) of the Employment Rights Act 1996 during the time that she was logged into the tracking system. The tribunal relied on the Supreme Court’s decision in Autoclenz Ltd v Belcher and ors, which allows a tribunal to depart from the wording of the contract and look at the reality of the situation if there is a contradiction. The tribunal noted that, while the contractual words are ‘key pieces in the jigsaw, the bar is low before the true situation can be explored’. Among other things, the tribunal considered it significant that the substitution clause was so prescriptive as to who could be a substitute that, in reality, only another City Sprint Ltd courier could fill in. Thus, the substitution clause in effect allowed no more than that D could swap jobs with a colleague. The tribunal noted that the very title of the contract, which described it as a tender document, aroused suspicion that it was the work of an ‘army of lawyers’, and that the tick-box exercise on recruitment heightened that suspicion and illustrated the inequality of bargaining power. The reality of D’s working conditions made it clear that she was integrated into City Sprint Ltd’s business. She was expected to work when she said she would; she was given directions throughout her ‘on circuit’ time; she was instructed to smile and wear a uniform; and she was told when she would be paid and how much, according to City Sprint Ltd’s calculations.
Thus, the tribunal concluded that she was not working for herself as a contractor but on City Sprint Ltd’s behalf, as a worker.
It is clear that Companies who hire individuals to work in similar circumstances or under similar conditions must be extremely careful regarding the level of control they exert over those individuals they consider self-employed. In order to avoid such situations it is key that Companies seek legal advice at the outset of the working relationship, so that guidance can be given to try and avoid a working relationship morphing from one of self-employment into being either a worker or an employee.
For further information please contact Charles Avens.
This news was posted on 26 January 2017.