Further success for gig economy ‘workers’
The Employment Tribunal has again decided that a so called ‘gig economy’ cycle courier was a “worker” and as such can claim certain employment protections (Dewhurst v CitySprint UK Limited)
Ms Dewhurst works as a cycle courier for CitySprint in London, which operates a fleet of between 50 to 60 couriers and whom it describes as self employed. Ms Dewhurst normally works four days a week, beginning around 9.30am and finishing around 6.30pm. During a typical day, she would work to a pre-arranged circuit and move from job to job, with gaps between the jobs. As per normal practice, every morning she speaks to a controller and logs into ‘Citytrakker’ – an online tracking system, and then logs out when she finishes for the day. Moreover, this tracker which she carries would track her every movement and manage her circuit.
All couriers would be expected to adhere to and sign a standard contractual document called ‘Confirmation of Tender to Supply Courier Services to CitySprint (UK) Limited’. As above, this document referred to couriers as self-employed individuals and they would be expected to ‘e-sign’ the document on their first day. The document also referred to several clauses which purport to emphasise the self-employed nature of the relationship such as there being no obligation on CitySprint to provide work and the courier is under no obligation to provide services, a substitute could be sent in place of the courier to carry out the services, if the courier did not work they would not be paid and would not be paid for holiday, maternity or sick periods. On commencement couriers were also informed to comply with a self-billing system for payment.
The ET Decision
Having examined the reality of the relationship, as well as the contractual document, the Tribunal held that Ms Dewhurst ‘was working not for herself with CitySprint as her customer but on [their] behalf’. In other words she was a “worker” and was not self employed. It found that the contractual document did not give a true reflection of the agreement in reality. The Tribunal came to its decision on the basis of the following points:
The fact that couriers had to electronically sign a contractual document led to a finding that there was clear inequality in bargaining power.
Even though there was a self-billing system, couriers did not use this system. CitySprint automatically calculated what was owed and they were paid in arrears each Friday.
There was no right of substitution – in reality, only couriers who were already on the circuit would be able to be a substitute.
Couriers were provided with equipment, would wear a uniform and were integrated into the organisation.
CitySprint exercised a level of control over working patterns and circuits.
The above decision meant that Ms Dewhurst was successful in her claim for holiday pay. However, the further implications for CitySprint in getting this wrong could be costly. It means that such workers would be entitled to other employment rights such as the national minimum wage and rest breaks.
This was an ET decision so does not set a binding precedent. However, it will certainly have further implications for the ‘gig economy’. There are already a number of cases which are waiting to be heard this year, and we would expect similar employers to face fresh challenges from ‘workers’ on their purported self-employed status.
If you are considering engaging individual’s on a self-employed basis, you should carefully consider how the relationship may work in reality. As this case shows, it is important that any contractual documentation reflects the true nature of the relationship. If it does, it will assist in discouraging such an individual from bringing claims in the first place.
For more information on the issues raised above or any other employment related matter, please contact a member of the Employment Team.