The definition of the ‘worker’ status under European Union law has been clarified recently by the European Court of Justice (ECJ), in light of a matter before the Watford Employment Tribunal (ET).
By way of background, this matter involved a man working for Yodel as a courier. He used his own vehicle and mobile phone, was not required to display any Yodel branding on either his clothing or vehicle, carried no Yodel identification, was able to decide his own routes and working hours and was permitted to work for other couriers at the same time. However, he had to arrange the deliveries to fit within time slots allocated by Yodel and had to use one of their handheld scanners to confirm each of their deliveries.
Crucially, under the terms of the contract he signed with Yodel in 2017 he was permitted to engage subcontractors for all or part of the contracted work if he was unable to do it himself, and that contract stated that he was a self-employed, independent contractor, and not an employee of, or worker for, Yodel. At the ET the man argued that this was inaccurate because he had never, in fact, engaged a subcontractor or delivered parcels for anyone else. This, he felt, supported his claim to be rightly considered a worker.
The ET requested clarification from the ECJ on a number of points relating to whether this man could be considered a worker under the Working Time Regulations 1988. UK law requires a ‘worker’ to perform contracted work personally, so the ET felt that this man’s being at liberty to work for other couriers at the same time as Yodel, even though he did not choose to do so, was inconsistent with worker status. Is a worker only a worker during the specific periods when they are working for the business in question? Overall it was the ET’s feeling that ECJ case law suggested incompatible interpretations of worker status, but it also requested clarification on any consequences this might have for limited companies or limited liability partnerships engaged in similar ways.
In its response the ECJ has stated its essential agreement with UK law that the ability to use subcontractors or substitutes to perform contracted work is incompatible with worker status. Furthermore, being at liberty to accept or reject work offered by a putative employer in whole or in part (such, in this case, as accepting only those parcels that could be included within pre-existing delivery routes), being at liberty to work for other putative employers at the same time even if those were direct competitors within a sector, and having the right to tailor working hours and other parameters according to personal convenience rather than the requirements of the employer are all incompatible with worker status.
The ECJ has not commented on the specifics of the Yodel case, but did make a further observation on the question of working time when it stated that the requirement for a delivery driver to deliver parcels during certain time slots was inherent to the very nature of the work. It could not, therefore, be taken as any evidence of the degree of latitude afforded by a courier to one of its subcontractor drivers.
