Employment Tribunal seek “worker” status clarification from the European Court of Justice

The Watford Employment Tribunal (ET) has put forward a set of questions to the European Court of Justice (ECJ) to seek clarification on the proper interpretation of “worker” status under EU law.

• The ET raised questions relating to the case of a Yodel courier, who is considered to be self-employed according to the contract he signed in 2017.
• His self-employed status was supported by his ability to use his own vehicle, not wear a uniform, carry parcels from other possible couriers he may be engaged with and use a substitute to deliver the Yodel parcels on his behalf.
• The courier objected to this and claims he is a ‘worker’, as he never undertook work for another company and never used a substitute.
• The tribunal stated that UK law focuses on the contractual rights and obligations of the individual and the employer. In UK law, if there is no obligation for the individual to provide a ‘personal service’, they cannot be considered to be a worker.
• Therefore, as the courier had the right to substitute, even if it is unexercised, he was deemed not to hold worker status.
• The ET has requested clarification as to whether the fact that an individual has the right to engage substitutes to perform all or part of their work means they cannot be considered a worker under the Working Time Regulations 1998.
• It also asks how working time is to be calculated in circumstances where the individual is free to determine their own working hours within certain parameters.

Aspire comment

The third employment status of ‘worker’ continues to be a contentious issue. The Good Work Plan, as outcome of the Matthew Taylor review, details Government intent to legislate to improve clarity on the employment status tests and align the treatment of employment rights and tax treatment but further information is awaited. 

It is important to regularly assess the engagement of staff, whether they be self-employed, employees or workers. contractual rights of a worker and compare this to the current legislation in order to accurately assess the status.