Employment Tribunal grants ‘self employed contractor’ employment law protections

2017-01-10 Jennifer Renney posted:

Hot on the heels of the recent Uber drivers’ case, the London Central Employment Tribunal has ruled that a bicycle courier at CitySprint UK Ltd was a ‘worker’ for the purposes of the Employment Rights Act 1996, despite the contractual documents describing her as a self-employed contractor. The effect of this is to grant the courier employment protections including holiday pay, maternity pay and sick pay, as well as other rights.

CitySprint UK operates a fleet of between 50 and 60 couriers in London who typically, though not invariably, work regular hours each week. During that time the couriers move from job to job, with gaps between jobs ranging from ten minutes to an hour. At the start of their shift the courier speaks to a controller and logs into the company’s electronic tracking system, and logs out at the end of their shift. The company’s system tracks couriers’ whereabouts and helps controllers to assign jobs. Controllers and couriers remain in contact through radio and mobile phones throughout the day.

CitySprint’s contract for couriers entitled ‘Confirmation of Tender to Supply Courier Services to Citysprint Ltd’, purports to treat the courier as a self-employed contractor. The courier is required to read and acknowledge a number of key terms in an electronic tick list on a computer which make it clear that the courier is under no obligation to provide services and CitySprint is under no obligation to provide work; that the courier may send a substitute to work instead, so long as the substitute fulfils certain criteria; that if the courier does not work he or she will not get paid; and that the courier is not entitled to holiday, maternity or sick pay. Once they start work, couriers are paid by the job. Although CitySprint refers to the payment process as a self-billing and invoice system, in practice couriers do not need to submit invoices for individual jobs – instead, CitySprint automatically calculates payments due and pays them weekly in arrears.

The tribunal looked at a number of issues before deciding the courier was not a self-employed contractor but a worker, including the nature of the substitution clause which was so prescriptive as to who could be a substitute that, in reality, only another CitySprint courier could fill in; the title of the contract ie “tender document”, which aroused suspicion; and the inequality of bargaining power. The reality of the courier’s working conditions made it clear that she was integrated into CitySprint’s business; she was expected to work when she said she would; she was given directions throughout her ‘on circuit’ time; she was instructed to smile and wear a uniform; and she was told when she would be paid and how much, according to CitySprint’s calculations.

Being a worker instead of self-employed can offer entitlement to more pay and additional employment rights. If you need to know more, just give us a call on 01225 632240 or at info@renneyandco.com and we can help you, whether you are a business or an individual.

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