P Patel v DPD Group UK Limited

The Employment Appeal Tribunal dismissed the appeal against an Employment Tribunal order striking out the claimant's claim as having no reasonable prospect of success under Rule 37(1) of the Employment Tribunal Rules 2013. The central legal principle was the statutory definition of "worker" in section 230 of the Employment Rights Act 1996, which requires an individual to undertake to do or perform personally any work or services. The tribunal concluded that the OwnerDriverFranchise agreement gave the franchisee a genuine right to provide a driver who met basic requirements and did not require the franchisee personally to perform delivery services. The EAT held that that genuine right of substitution, supported by earlier authority in Stojsavljevic & Turner v DPD Group Ltd, was fatal to a claim of worker or employee status and that the purposive approach to statutory interpretation in Uber v Aslam did not change that outcome.

Background and parties:

The appellant (the Claimant) entered a OwnerDriverFranchise agreement with the respondent (DPD) to provide parcel delivery services. The Claimant asserted he was a worker/employee and challenged the Employment Tribunal's strike-out decision. The Respondent relied on the contractual terms which defined a separate role of "Driver" and permitted substitution.

Procedural posture:

• The Employment Tribunal (Employment Judge Wright) struck out the claim on 1 December 2022 as having no reasonable prospect of success; reasons were dated 12 December 2022.
• The Claimant appealed to the Employment Appeal Tribunal (this decision dated 5 March 2024).

Issues for decision:

• Whether the Employment Tribunal erred in striking out the claim without investigating facts of subordination, vulnerability, dependency and practical impediments to substitution.
• Whether the modern, purposive approach to statutory interpretation (as described in Uber v Aslam) required a different conclusion on worker/employee status.

Court's reasoning:

• The EAT emphasised the statutory definition in s.230 ERA 1996 requiring an undertaking to perform services personally. A genuine contractual right of substitution indicates absence of personal service and is inconsistent with worker or employee status.
• The tribunal should assess both the written contract and factual reality, but it is not entitled to ignore a genuine written agreement which reflects the parties' relationship.
• The Claimant did not identify distinguishing factual features from the materially similar cases of Stojsavljevic and Turner, where identical agreements were held to be genuine and the drivers were not workers; that decision was upheld on appeal.
• The Claimant’s points about van hire costs, training prerequisites and penalties for non-delivery did not, on the evidence, demonstrate that the contractual right of substitution was illusory or that there was sufficient dependence or control to establish worker status.
• The EAT concluded that the Employment Tribunal had not erred in striking out the claim because the claim had no reasonable prospect of success.

Relief sought: The Claimant sought to overturn the strike-out and to have the claim proceed to trial on worker/employee status grounds; the EAT dismissed that appeal.

The appeal was dismissed. The EAT held that the Employment Tribunal did not err in striking out the claim as having no reasonable prospect of success because the franchise agreement contained a genuine right of substitution and did not require the Claimant personally to perform parcel delivery; that factual and contractual features relied on by the Claimant did not distinguish his position from earlier decisions (in particular Stojsavljevic & Turner) and the purposive approach in Uber v Aslam did not alter the conclusion.

This was an appeal to the Employment Appeal Tribunal against an Employment Tribunal (Employment Judge Wright) order dated 1 December 2022 striking out the claim under Rule 37(1) of the Employment Tribunal Rules and Procedure 2013 (reasons dated 12 December 2022). The EAT referred to earlier proceedings concerning materially similar franchise agreements in Stojsavljevic and Turner v DPD Group Ltd ([EA 2019] 000259), where the relevant agreements were held to be genuine and the drivers found not to be workers; that decision had been upheld on appeal.