Law at Work - November 2021 – 3 / 4 观点
A worker is someone who either works under a contract of employment or falls within the so-called limb (b) worker test under the Employment Rights Act 1996. This is where an individual provides a service as part of someone else's business. Generally, they must carry out the work personally rather than be able to send someone else in their place. If there is an unfettered right to substitution, then the individual is often described as being truly self-employed or a truly independent contractor. In the case of Stuart Delivery Ltd v Augustine the question for the Court of Appeal was whether Mr Augustine, a courier, was under an obligation to perform services personally, as required for worker status.
Stuart Delivery Ltd (SD) had a mobile app which connected couriers with clients. Couriers could accept individual slots. Alternatively, they could sign up for one or more particular time slots committing them to being available in a particular place at a given time, for which they were paid a minimum rate of £9 per hour. They could subsequently release a slot via the app for other couriers to accept. However, if no one else did then the original courier had to either complete the job or incur a penalty for failing to do so. Mr Augustine was a courier for SD and made various claims in the employment tribunal including that he was an employee or, alternatively, a "limb (b)" worker.
The tribunal held that he was a worker (but not an employee) because although Mr Augustine could release a particular slot to another courier, this did not amount to an unfettered right of substitution. If no other courier accepted the slot then Mr Augustine had to perform the work personally, or pay a financial penalty for not doing so. On appeal, the EAT agreed with the tribunal that either there was no right of substitution or there was a limited right. SA then appealed to the Court of Appeal over Mr Augustine's right of substitution arguing that there was no obligation on Mr Augustine personally to turn up and perform the slots and that he was free to seek to substitute another courier for any slot which he changed his mind about covering. The Court of Appeal dismissed SD's appeal, again holding that Mr Augustine's ability to allow other couriers to fulfil a slot he had released was not sufficient a right of substitution to remove the obligation for him to perform his work personally. This echoed the Court of Appeal's decision in Pimlico Plumbers Ltd and another v Smith - where there was a requirement for personal service, with only a limited right of substitution.
In organisations providing services to the public which require some type of entry level checks, vetting, uniform etc for individuals working there, such as Pimlico Plumbers, the argument that there is an unfettered right to provide a substitute is a difficult one to win. The individuals who provide the services to consumers are undertaking to provide those services personally. In the event that there is a limited right of substitution, it is still ultimately incumbent on the original individual, in this case Mr Augustine, to provide the service, or suffer financial consequences of failing to do so.