P Patel v DPD Group UK Limited

A person cannot qualify as an employee or limb (b) worker unless they undertake personally to perform work or services. A genuine contractual right to provide the service through another suitably qualified driver is inconsistent with that essential requirement.

The statutory inquiry is purposive and must consider both the written agreement and practical reality. However, where the agreement genuinely reflects the parties’ relationship, it remains of critical significance. Vulnerability, subordination and dependency may assist in deciding whether written terms reflect reality; they do not dispense with the requirement of personal performance under Employment Rights Act 1996 section 230.

The claimant entered an Owner Driver Franchise agreement to provide parcel-delivery services to DPD. The agreement required him to operate a business supplying a driver, vehicle and equipment. A driver could be the claimant or another suitably qualified person engaged by him.

The Employment Tribunal struck out his claim under Rule 37(1), finding that the agreement imposed no obligation of personal service and that the claimant had identified no material distinction from earlier proceedings involving DPD franchise drivers under the same agreement. He appealed, relying on the purposive approach to worker status and alleging practical dependence, control and restrictions upon substitution.

The central issue was whether the Tribunal erred in striking out the claim as having no reasonable prospect of success.

1. Appeal dismissed. The Tribunal was entitled to conclude that the claimant’s claim had no reasonable prospect of success.

2. Section 230 of the Employment Rights Act 1996 requires an individual seeking employee or worker status to undertake personally to perform work or services for the other contracting party. Personal performance remained pivotal after Uber BV and others v Aslam and others [2021] UKSC 5.

3. The franchise agreement distinguished the franchisee from the driver. It required the claimant to provide a driver who met limited qualifications and training requirements, but did not require him to be that driver. DPD had no veto over a proposed driver who met those requirements. The claimant could therefore provide parcel-delivery services through another person at his election.

4. The purposive statutory approach requires attention both to contractual documents and to the relationship’s practical reality. A tribunal must be alert to documents that do not reflect reality. Conversely, it is wrong simply to disregard a genuine agreement which does reflect it. Vulnerability, subordination and dependency may be relevant to that evaluative question, particularly where terms are supplied by the stronger party.

5. The identical agreement had previously been found genuine in proceedings involving materially similar DPD drivers, and that conclusion had been upheld on appeal. The claimant’s van-hire obligations, asserted difficulty in arranging trained cover, and personal choice usually to drive did not create a material distinction or alter the contractual absence of personal service. The Tribunal’s conclusion disclosed neither an error of law nor perversity.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal’s strike-out decision was upheld.
• Employment Tribunal: Employment Judge Wright struck out the claimant’s claim under Rule 37(1) as having no reasonable prospect of success. Reasons were dated 12 December 2022.