Ability to “release” job not an unfettered right to substitution, says EAT

Just in time for Christmas, we have another Employment Appeal Tribunal (EAT) decision on employment status in the gig economy: Stuart Delivery Ltd v. Mr Warren Augustine UKEAT/0219/18/BA.

When Mr Augustine, a motorbike courier for Stuart Delivery Ltd (SD), brought a claim (for unauthorised deductions and holiday pay, among other things), SD sought to argue that he was an independent contractor in business on his own account. SD’s argument largely rested on the fact that its mobile app, which connects couriers with clients, allowed Mr Augustine to “release” a delivery shift he had agreed to work providing another courier took the shift on. SD argued that the ability to release shifts meant that its couriers were under no obligation to carry out services personally and could therefore not be classed as workers within the meaning of s.230(1) Employment Rights Act.

The tribunal and EAT both disagreed that Mr Augustine enjoyed the right of substitution. Upon “releasing” a shift, unless another courier agreed to take it on, the courier in question would need to complete the shift themselves or face potential sanctions including fines, a negative performance score and “off-boarding”. As such, Mr Augustine could not be said to be running a business on his own account and was therefore a worker. That meant he was entitled to benefits, such as holiday pay and the National Minimum Wage.

Subscribe and stay updated
Receive our latest blog posts by email.
Tom Fancett

About Tom Fancett

Tom has experience acting for both employers and employees, advising on the full spectrum of contentious and non-contentious matters. His experience includes advising on large commercial transactions, including redundancy and TUPE issues; undertaking buy side and sell side due diligence exercises into the employment aspects for multiple commercial transactions; coordinating multijurisdictional projects; defending Employment Tribunal claims in relation to unfair dismissal, disability and sex discrimination and whistleblowing; advising on day-to-day HR and disciplinary issues; drafting and negotiating settlement and service agreements; and reviewing company handbooks and template employment contracts.

Full bio