In Dewhurst v CitySprint UK Ltd, a bike courier succeeded in her claim for two days' holiday pay after an employment tribunal determined that despite her contract describing her as self-employed she was still a “worker”.
D works as a bike courier for Citysprint (UK) Limited (CS Ltd). D normally works four days a week between the hours of 9:30 am and 6:30 pm. A typical day involves completing several deliveries with gaps between them. At the start of the day, she notifies a controller and logs into the company’s tracking system. D’s whereabouts are tracked until she finishes work. This helps controllers assign jobs to couriers. Controllers and couriers contact each other via radio and mobile phones throughout the day.
Couriers sign a contract titled ‘Confirmation of Tender to Supply Courier Services to Citysprint Ltd’. D signed this contract and was additionally required to acknowledge key terms by ticking a list on a computer, such as not being obliged to work for CS Ltd, CS Ltd not being obliged to provide work, being able to substitute work to someone else and not being entitled to any holiday, maternity or sick pay. The couriers are paid per job and are supposed to be paid through a self-billing invoice system. However, the couriers do not submit invoices in practice. CS Ltd calculates their pay and pays couriers on weekly basis. D argued that she was a ‘worker’ under the Employment Rights Act 1996 and brought a claim for two days’ holiday pay.
The degree of control enjoyed by CS Ltd during the time D was logged into the tracking system meant that she was not working for herself, but on behalf of the company. The tribunal departed from the wording of D’s contract and instead inspected the whole of the employment relationship in order to consider whether the contract represented the true agreement between the parties. The judge described the contract as "contorted", "indecipherable" and "window-dressing". Crucially, the substitution clause in the contract was so narrow that in practice D could only use a colleague at CS Ltd to replace her. The title of the contract aroused suspicion that “an army of lawyers” had been used. The electronic list of key terms, which a courier must complete to begin work, exacerbated that suspicion and indicated unequal bargaining positions.
D’s working conditions meant that she had been assimilated into CS Ltd. She was expected to work at certain times and remained under close instruction throughout her working day; she had to wear a uniform; and CS Ltd calculated her pay and decided when she would be paid. She was not working for herself, but on behalf of CS Ltd. As such, the tribunal held that D was a ‘worker’ for the purposes of the Employment Rights Act 1996 and her claim for two days’ holiday pay was successful.
Hannah Ball comments: "Following on from a victory for an Uber driver in October 2016, this is the latest case to consider whether ‘self-employed’ contractors in the “gig economy” are actually ‘workers’. As with the Uber case this is only a tribunal decision so it’s not binding on other tribunals and the outcome may be different for another bike courier. However, the decision underlines the need for organisations that use self-employed contractors to keep under review the nature of those relationships to ensure they are complying with any legal rights such individuals may have as ‘workers’."
If you require further assistance please contact a member of the team.