The ECJ has considered whether a delivery driver engaged as a self-employed independent contractor was a ‘worker’ under the Working Time Directive.
B v Yodel Delivery Network Ltd, C-692/19
The claimant (a courier) was engaged by Yodel as a self-employed independent contractor. Yodel couriers use their own vehicles and equipment. They can choose the time of delivery and the appropriate route. Yodel is not obliged to provide any work and couriers may reject jobs. They have the right of substitution, although this is subject to veto by Yodel if the substitute does not have adequate level of skill or qualification. Couriers are also free to work for other delivery companies. In the context of claims under the Working Time Regulations 1998, an employment tribunal referred the case to the ECJ.
The ECJ issued a reasoned order based on existing case law, rather than delivering a judgment. This case law has established that merely classifying a person as an ‘individual contractor’ under national law does not prevent an individual being properly classified as an employee under EU law, if their independence is merely notional (note, EU law does not distinguish between an ‘employee’ and a ‘worker’). The Court highlighted the factors that the employment tribunal would need to take into account in reaching its decision, including the contractual power of substitution, the courier’s freedom to decide whether to accept work, to choose his own working hours and to work for others (including competitors). This, in the Court’s view, gave the individual a “great deal of latitude” and was suggestive that he would not be a ‘worker’ under the Working Time Directive.
This case will now return to the employment tribunal for a decision to be reached. The wording of the ECJ order points quite strongly to a conclusion that the courier will not be considered as a ‘worker’ within the Working Time Regulations 1998. If this is the tribunal’s conclusion, it would contrast with the decisions in many of the recent employment status cases involving couriers and taxi drivers, where the courts have reached a finding that the individual was a ‘worker’. Note, however, that an employment tribunal decision will not be binding on other tribunals.
This article is from the May 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2020.