The case appeal concerns the status of a courier delivering goods by moped.

The question was whether an employment tribunal was entitled to find that the claimant was a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996, and, in particular, whether he was a person who undertook to perform work or services personally pursuant to a contract with the respondent.

The answer given by the Court of Appeal confirmed that “the tribunal was entitled to conclude that he performed the courier services under a contract to do the work or provide the services personally and that the respondent was not the client or customer of any business undertaking carried on by the claimant”.

Section 230(3) of the Act defines a worker as a person who has entered into or worked under:

(1) a contract of employment; or

(2) a contract where the individual undertakes to personally do or perform any work or services for another person who is a party to the contract and whose status is not by virtue of the contract, a client, or customer of any profession or business undertaking carried on by the individual.

The Supreme Court has previously reviewed whether a person is a worker for the purposes of section 230 of the Act and similar legislation in Uber BV v Aslam [2021], as we reported in our March 2021 article. In particular, it was established that, where the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed, the question of whether work is performed by an individual as an employee (or a worker in the extended sense) or as an independent contractor is to be regarded as a question of fact to be determined by the first level tribunal.

In this case, the Employment Tribunal held that the claimant was a worker: once the claimant had signed up for a time slot during which he was to be available to deliver goods by moped, he was required to perform those services personally. Furthermore, the claimant's ability to release a slot to other couriers via the respondent's app was not a sufficient right of substitution to remove the obligation on the claimant to perform his work personally.

The tribunal also said its decision was consistent with the decision of the Supreme Court in Pimlico Plumbers that the ability to appoint a substitute subject to a significant limitation did not negate the requirement to provide services personally, which is a key element in the definition of a worker. 

The Employment Appeal Tribunal upheld that decision.

The real issue is whether the obligation was one of personal performance and whether the "nature and degree of any fetter on a right of substitution" was consistent or inconsistent with an obligation of personal performance.

The tribunal clearly concluded that the system was not inconsistent with an obligation of personal performance.

On the basis of the same requirement of the existence of an obligation to provide services personally, the UK Court of Appeal recently held, on the contrary, that Deliveroo's riders have a virtually unlimited right of substitution.

Consequently, the Court concluded that these riders are not 'in an employment relationship'.