Stuart Delivery Ltd v Augustine

[2019] UKEAT 18_0219_0512

Case details

Case citations
[2019] UKEAT 18_0219_0512
Court
Employment Appeal Tribunal
Judgment date
5 December 2019
Judgment text

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Subjects
Employment status Worker status - limb (b) Substitution clauses
Keywords
substitution personal service worker employee in business on own account integration control Pimlico Plumbers Jivraj perversity
Outcome
appeal dismissed
Judicial consideration

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Summary

It is not correct that any conditional or limited substitution clause automatically negates limb (b) "worker" status. Instead, the court must ask whether, in practice and on the true construction of the arrangements, the individual was obliged to perform personally.

A right to release a shift into a pool, with no control over who (if anyone) takes it, will often be insufficient to displace personal service.

Whether a contracting party is in business on his own account is a fact-sensitive enquiry. Integration, control and the allocation of business risk remain central indicators.

Factual background

This appeal concerned the employment status of a motorbike courier who signed up for guaranteed "slots" on a delivery platform. The Employment Tribunal found he was not an employee but was a "worker" while undertaking pre‑allocated slots and was not in business on his own account. The platform operator appealed two points: (1) whether the Tribunal misapplied the law on substitution; and (2) whether the Tribunal erred in finding the courier was not in business on his own account. The matter reached the Employment Appeal Tribunal following a permission/RULE 3 sift. The central question was whether the slot arrangements and related controls meant the courier was obliged to perform personally and was not acting as an independent business.

Held

(1) Overall disposition: The appeals are dismissed. The Employment Tribunal did not err in law in its conclusions and its factual findings were not perverse. (see paras [62]; [70]). (2) Worker status on slots: The Tribunal correctly applied s.230(3)(b) ERA 1996 and relevant authorities. It accepted that there was no unfettered right of substitution. The Release Notification system, which allowed a courier to re‑release a slot into a pool, did not amount in practice to a right to provide a substitute chosen by the courier. The absence of control over who (if anyone) accepted a released slot meant the courier remained under a real obligation to perform personally. The Tribunal properly held that this arrangement did not displace limb (b) worker status. (see paras [31]–[34]; [62]). (3) Application of Pimlico Plumbers: The Tribunal correctly identified and applied the five illustrative substitution categories from Pimlico Plumbers. Although the Tribunal misidentified to whom the "absolute discretion" language referred, that error was immaterial because, on the facts as found, the operator effectively had absolute control over substitution through the pool. Pimlico Plumbers was therefore applied and followed. (see paras [31]; [40]–[41]; [62]). (4) In business on own account: The Tribunal's detailed factual findings (integration in the platform, controls, guaranteed hourly pay, absence of business risk) supported the conclusion that the courier was not in business on his own account while on slots. The Employment Appeal Tribunal found no flaw in the Tribunal's application of Jivraj and related authorities. (see paras [36]; [38]; [41]–[43]; [58]). (5) Employee/umbrella contract argument: The Tribunal's brief rejection of a global/umbrella employment contract was adequate. Any question whether each slot separately created an employment contract was academic on these facts. No remittal was required. (see paras [53]–[56]). (6) Perversity challenge: The Tribunal's findings about hours and a small number of ad hoc deliveries were supported by the respondent's records. The high test for perversity was not met. The respondent conceded a minor numerical correction could be made, but this did not undermine the conclusion. (see paras [64]–[69]). (7) Orders: The appeals and cross‑appeal are dismissed. (see para [70]).

The court’s approach to earlier authorities

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Appellate history

  • Employment Tribunal (London Central) – Preliminary Hearing and reserved judgment (Employment Judge Angela Stewart). Reserved judgment sent 21 May 2018; findings of fact and conclusions on status recorded (see Tribunal paragraphs recited in judgment).
  • Employment Appeal Tribunal – Appeal heard 3 September 2019; judgment handed down 5 December 2019 (appeal dismissed).

Key cases cited

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