CJEU suggests that delivery driver does not have rights as a ‘worker’

Out-Law News | 05 May 2020 | 9:26 am | 2 min. read

The Court of Justice of the EU (CJEU) has issued an order finding that a delivery driver did not have the status of a ‘worker’ under EU regulations, a decision which an expert said could put the “brakes on the direction of travel” of similar cases.

The CJEU was ruling in a case referred by the Watford Employment Tribunal. A delivery driver, known as ‘B’, brought the claim against delivery company Yodel, claiming that he was a ‘worker’ under the terms of the EU’s Working Time directive and the UK’s Working Time Regulations.

Employment law expert Diane Nicol of Pinsent Masons, the law firm behind Out-Law, said the case “seems to put brakes on the direction of travel of previous worker status cases which tended to find in favour of the worker, attributing worker status and the basic rights that come with it like minimum wage and holiday pay to them”.

Nicol Diane

Diane Nicol

Partner

The government has said it will offer ‘greater protection for workers’ but we will have to wait and see what that means.

The tribunal asked the CJEU for a preliminary ruling on issues including the question of whether an individual’s right to engage subcontractors or substitutes to perform any of the services required of him means that he should not be regarded as a worker. It also asked the CJEU whether status is determined by a company’s right to not always offer work, and an individual’s right to turn down work when it is offered, and whether the individual can also work for a third party.

The tribunal additionally asked the CJEU for a ruling on how a worker’s working time should be calculated if he is not required to work fixed hours, but instead is able to determine his working hours within certain parameters.

The CJEU noted that it had previously held that the classification of an ‘independent contractor’ does not preclude that person from being classified as an employee if the independence is notional. It said in the Yodel case that B appeared “to have a great deal of latitude in relation to his putative employer”, with the discretion to subcontract work, refuse work and decide in what order he delivered parcels.

The court ruled that where an individual’s independence to take on work, use subcontractors and set his own hours of work did not appear to be fictitious, and where it was not possible to establish the existence of a relationship of subordination between an individual and his putative employer, that person should not be classified as a worker.

However, it will be for the Watford tribunal to make a final ruling on B’s status.

Pinsent Masons’ Nicol was a member of the UK’s Taylor Review in 2017, which looked at the question of control and made recommendations to clarify worker status through legislation with control at their core.

“Unfortunately, while many of Taylor’s recommendations have been implemented, two pivotal recommendations (which the government did accept in principle) have not, namely, clarity on worker status and closer alignment of the employment law and tax regimes,” Nicol said.

“Without these, many of those who operate in the gig economy and in atypical employment have continued uncertainty as to their rights and obligations particularly at this difficult time for individuals and for those who engage them,” Nicol said.

Nicol said a recent House of Lords committee report focusing on off payroll working rules, known as IR35, suggested that the government was intent on aligning more closely the tax and employment regimes.

“This is a positive step but there does not seem to be any appetite to implement Taylor’s recommendations on clarity on worker status from an employment law perspective. The government has said it will offer ‘greater protection for workers’ but we will have to wait and see what that means,” Nicol said.

“In the meantime, workers, those who engage them and the lawyers who advise them, will continue to navigate the thorny issue of worker versus self-employed status,” Nicol said.

The UK’s Supreme Court is due to hear an appeal from Uber in July against a Court of Appeal ruling which found that a group of Uber drivers were workers, entitled to a minimum wage and paid holidays. Workers have also won a number of other similar cases, including a 2018 Supreme Court case brought against Pimlico Plumbers and a more recent Employment Tribunal judgment in favour of art experts working at the National Gallery.

Nicol said the Uber hearing would show whether the direction of travel in favour of workers was resumed.