Following hot on the heels of the Uber judgment, the latest decision on working practices of the ‘gig economy’ has been released. The London Employment Tribunal found that the claimant, a medical cycle courier for CitySprint, was not a ‘contractor’ but a worker.
The contract between Dewhurst, the claimant, and CitySprint was described as a “Confirmation of Tender to Supply Courier Services” and explicitly classes Contractors as ‘self-employed’. A number of contractual clauses attempted to uphold the self-employed status of workers by stating there was no mutuality of obligations; there was a right to substitute, and contractors advised CitySprint of their availability.
After examining the reality of the working relationship, the tribunal found that the documentation was “contorted” due to the inequality of bargaining positions of the parties. As highlighted in the Uber case, the judge looked at the practicality of the courier being in business ‘on their own account’ and found this concept was a “sham”. Dewhurst was dependent on CitySprint both economically and organisationally; any person operating a business would not be in this position.
Other factors which contributed towards the ‘worker’ decision included:
- The lack of discretion in how the services were to be performed by the courier
- The inability to actually carry out work for others whilst undertaking jobs for CitySprint
- Cycle couriers could not, in reality, substitute—the opportunity to do so was so small because of the substitution requirements outlined in the documents
- CitySprint controlled how the couriers worked by directing them during their time on circuit, instructing them to “smile” and wear a uniform, paying them according to the company formula and issuing instructions on handling undeliverable parcels
The tribunal determined Dewhurst to be at work when she was “on circuit”; in effect, from when she turned on her tracking device to when she told the controller she was finished for the night. During this period of time, she was either working or on standby as she could not provide services to anyone else or entertain herself during those hours.
This claim, brought by Dewhurst to establish her status and to receive payment for two days’ holiday, is the latest in a long line of claims against similar business models. The same union is bringing courier cases against Addison Lee, eCourier and Excel within the next few months. These will be heard by the same employment tribunal, so this decision may be an indication of how the scrutiny of these firms’ business models will be carried out. A government review into modern employment practices is ongoing.
One thing is for sure; 2017 is going to be the year of the ‘gig economy’.