‘Substitution’ via an app doesn’t support self-employment status

• The Court of Appeal has found that a moped courier’s ability to release a slot he was unable to undertake to other couriers via an app is not a sufficient right of substitution.
• The case of Stuart Delivery Ltd v Warren Augustine concluded that the Claimant was a worker in accordance with the Employment Rights Act 1996.
• The Claimant could create a Release Notification via the Respondent’s app so that other couriers with the app could fill any unwanted slots.
• The Claimant would not know which courier had taken the slot and was not able to provide the notification to one specified courier.
• If other couriers did not take up the offer, then the Claimant would have to fulfil his obligations and personally perform the services, or face the consequences of missing his slot.
• The courts stated that the app system could not be reasonably described as “an unfettered right to substitution”.
• Furthermore, the Employment Tribunal had found disparities between the written terms and the reality of the operations in practice. There was no reference to a right of substitution.

Aspire comment

Genuine self-employment must include the unfettered right of substitution.

Both this case and the Pimlico Plumbers case demonstrate that a dominant feature of the reality was an obligation of personal performance and the facility to appoint a substitute was limited, on the basis that any substitute had to come from “the rank” of Pimlico operatives or, in this case, other couriers that had signed up to the app.

False self-employment remains a major issue that can be costly if you get it wrong. Are you confident your subcontractors are genuinely self-employed?

Read our previous blog on other self-employment cases here.