01 May, 2020
The European Court of Justice (ECJ) has ruled that a Yodel delivery driver, did not have 'worker' status, in accordance with the Working Time Directive. It remains now for the Employment Tribunal to make the final decision on this case.
The case was to be heard by Watford Employment Tribunal in the first instance, however the Tribunal referred a number of questions, regarding B's 'worker' status, to the ECJ for preliminary ruling.
B v Yodel Delivery Network Ltd questions whether or not a delivery driver, working as a parcel delivery courier for Yodel, was a 'worker' within the meaning of the Working Time Directive. Yodel contracted the driver under a courier services agreement, highlighting within the agreement that B was considered a self-employed contractor. As a courier for the company, B used his own vehicle to make deliveries and his own mobile telephone to contact Yodel. As part of the agreement, delivery drivers are not required to fulfil their own deliveries and enjoy the ability to appoint a substitute, for all or part of their role, though B would remain liable for the substitute. To caveat this, Yodel retain the right to veto a substitute, if they do not have the requisite skills or qualifications. In addition, B was able to work for other delivery services, including direct competitors of Yodel. There was no obligation for Yodel to provide B with work and he was able to choose his own delivery times, between the hours of 7:30am and 9:30pm, provided there was no fixed delivery time set for a parcel. B also received a fixed rate, depending on the location of the delivery, for each parcel he delivered.
In ruling that B was not a 'worker' for the purposes of the Directive, the Court noted that a key element of the Directive is for an individual to perform services, under the Direction of another, in return for remuneration, meaning some element of subordination was required. The specific classification of a person as an 'independent contractor' does not preclude them from being classified as an employee or worker under the Directive. Despite this, the freedoms enjoyed by B, to choose his own times, place and substitutes for work, was suggested to align with being an independent service provider, as opposed to a worker.
The Court outlined several factors for the Tribunal's final determination, including whether the level of independence that B has in determining his own working styles, was genuine or notional. In conclusion, the Court indicated that B's independence indicated that there was no subordinate relationship between himself and Yodel, and he was instead an independent, self-employed contractor. The ECJ have left it for the Tribunal to have the final say, meaning the final determination in this case remains outstanding.
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