Following the recent Uber ‘worker’ decision, another employment tribunal has found that a bike courier working for CitySprint is also a worker rather than self-employed, giving her rights to holiday pay, Statutory Sick Pay, and the National Living/Minimum Wage.
In 2020, a further CitySprint case found that the couriers were workers, despite them having received a revamped employment contract (details below).
Brief details of Dewhurst vs CitySprint
Maggie Dewhurst cycled up to 50 miles per day for CitySprint between 9.30am to 6.30pm, four days a week. When she started work each day, she would speak to a controller at the company and needed to log onto a system called ‘Citytrakker’, which tracked her location and helped allocate courier jobs along with the Controller. She was also in touch with the controllers throughout the day by radio / mobile phone and was told where to pick parcels up and where to deliver them to.
She told the tribunal that she had a “fear” if getting less work if she didn’t do as she was asked, and that while it was possible for her to refuse to carry out a job, it’s “widely understood” that this “isn’t a good idea” as the controllers would find that “disruptive”. Dewhurst said: “Ultimately, this would impact on the amount of work I am allocated.”
Dewhurst was helped by the Independent Workers Union of Great Britain (IWGB), which says courier companies have been denying their workers appropriate employment rights.
Her contract was called a ‘Confirmation of a Tender to Supply Courier Services’ and described her as self-employed, claiming that:
- she could determine the way in which jobs were performed including the route.
- CitySprint was not obliged to offer her work at any time, and she wasn’t obliged to accept any job allocated to her.
- she could accept work from other organisations whilst working for CitySprint.
- she could provide a ‘substitute’ to do her work.
The tribunal had no doubt the contract was actually not a genuinely self-employed contract, and that Dewhurst was in fact a worker, providing a personal service, while on the ‘circuit’ i.e. logged into the tracking system. She had originally claimed she was an employee and a worker, but later dropped the employee claim).
In spite of the written terms of the contract, the tribunal looked at the practical reality of the working relationship between CitySprint and Dewhurst, finding that:
- Dewhurst couldn’t determine how the jobs were performed – she was told to smile when greeting customers and had to wear a CitySprint uniform;
- She couldn’t choose the jobs she carried out when logged into the tracking system;
- She couldn’t realistically undertake work for other employers at the same time;
- She would find it difficult to find a ‘substitute’ for herself (other than swapping jobs with other Couriers working for CitySprint who were already on the circuit);
- She was expected to work when she said she would (she had to ring in if she was going to be late or was sick and had to book leave in advance);
- She was directed by a Controller who assigned jobs – her only discretion was the actual route she used to get to jobs;
- She was fully integrated into the business;
- Although CitySprint said that couriers were paid through a billing and invoice system, the reality was that couriers didn’t submit invoices, but CitySprint automatically calculated their payments and paid them weekly in arrears.
O’Eachtiarna and others v Citysprint (UK) Ltd
We can’t find any evidence that there was an appeal in the Dewhurst case above, and it may be because Citysprint decided to introduce new contracts in November 2017 (after the January 2017 Employment Tribunal decision above).
The new contracts included substitution clauses where the couriers agreed to provide a substitute in their place if they could not work, and in that situation the couriers would pay the substitute themselves.
In addition, the new contract included a rolled-up holiday pay clause, which stated that any fees paid to the couriers would be deemed to include holiday pay. Citysprint conceded that prior to November 2017 the couriers where workers, but said they were not entitled to holiday pay(!). After November 2017, CitySprint said the new terms defeated any claim for holiday pay.
However, five further cycle couriers argued that the new substitute terms had no practical effect on their engagement, and the new holiday clause was not valid, therefore they were still workers.
The Employment Tribunal found that the couriers were still workers (after the change in their contract) – the right to substitution was theoretical and had never been used. Additionally most of the cycle couriers provided a personal service only to CitySprint. The ET found they were entitled to holiday pay, and the rolled-up holiday pay did not satisfy the requirements for a valid rolled-up holiday pay clause (it did not specify a holiday pay sum or how the sum was to be calculated).
This is another ‘status’ decision by a Tribunal which is based on the reality of the relationship, rather than the wording of the contract.
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Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.