Head(s) of Claim: Worker Status.
Relevant Law/Statue:
Working Times Regulation 1998.
Directive 2003/88/EC.
Preliminary Ruling of the European Courts of Justice on Referral from the Watford Employment Tribunal Case.
The Claimant worked as a Yodel Parcel Courier since June 2017. Throughout his employment he made use of his own phone, own vehicle, he received no branding on his uniform nor vehicle and the only device supplied to him through the Defendant was a handheld scanning device. Throughout the duration of his time at Yodel he was subsequently not obliged to carry out his contractual duties personally, he could appoint a suitable substitute if necessary. He was not prohibited from delivering for any other courier service, even competitors to Yodel, and although he entered into an express contract with the Defendant, it stated he was a self-employed contractor.
The issues of the case and subsequent referral to the European Courts of Justice (ECJ) was did the definition of ‘worker’ as expressed under the Working Time Regulations 1998 comply with European Law. It looked towards answering the question that if a person has the right to engage subtractors does it stipulate that he is not a worker under Directive 2003/88/EC. It ultimately explored the ambiguity around Employee status and provided clarification from the highest judiciary. They ruled as follows:
The UK definition of ‘worker’, as set out in the Working Time Regulations 1998, is compatible with EU law. As such, the following criteria was set out in order to establish the credentials for worker status.
1- Employment relationship must be established: there must be a period of set time in which a person performs services for/under the direction of another in return for renumeration.
2- Must be able to establish a subordinate relationship.
If these two criteria were not satisfied then it would fall into the self-employed sub-contractor territory, providing that:
1- Discretion: The contractor in question has the discretion in when accepting or declining various tasks assigned, and vise versa. ‘The putative employer is not obliged to offer work to the individual claimant i.e. that it is offered on a ‘when needed’ basis; and/or that the individual claimant is not obliged to accept it.’ [3]
2- Substitute: Able to appoint a substitute in place of oneself, as long as they are able to fulfil the contractual duties. The defendant was therefore ‘not to be regarded as a worker for the purposes of Directive 2003/88/EC… the right to substitute being inconsistent with the status of worker.’ [2] [2.1]
3- No Conflict: ‘the individual is not required to work exclusively for the putative employer,’ [6.1] they are also eligible to work for other firms whilst carrying out their contractual duties for the employer, this is up to and including competitor firms.
4- Flexibility: [Based on Context] Usually the subcontractor would have ‘a great deal of latitude as to the mode of delivery work.’ [6.2]. With the case at hand, time discretion was not an issue up for contention as the Defendant was a delivery service it was paramount that time chosen was applicable to that job.