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The European Court of Justice has provided some clarification around how ‘worker’ status is defined under EU law, but has stopped short of making a judgment in a case involving the employment status of a Yodel courier.

The court considered questions posed by the Watford Employment Tribunal, which last year raised concerns that the UK’s definition of ‘worker’ status might be incompatible with how it is defined by the EU when considering the case.

The case involved a courier known as “B”, who was engaged as a self-employed contractor for Yodel. He used his own vehicle and mobile phone when carrying out work for the company, and although deliveries had to be made in a particular time window, he was able to set his own working hours and delivery routes.

The Watford Employment Tribunal had been asked to consider whether B was a “worker” and not self-employed during the period of time he was delivering for Yodel, as he never used subcontractors. UK law requires a person with worker status to “undertake to do or perform personally any work or services”.

The tribunal asked the European Court of Justice (CJEU) whether the fact that an individual who has right to engage subcontractors or “substitutes” to perform all or any part of their work meant they were not to be regarded as a worker, either at all; or only in respect of any period of time when using a substitute (so that the person is to be regarded as a worker when actually performing work or services).

It also asked whether it was necessary to consider whether the individual had actually exercised the right to use subcontractors; and whether the fact that limited companies and limited liability partnerships are engaged on the same terms as the claimant was relevant.

Last week, the CJEU stated that EU Working Time Directive should be interpreted as stipulating that a person engaged by an organisation under an agreement which states that they are a self-employed independent contractor, cannot be classified as a “worker” where that person is afforded discretion including:

• the ability to use subcontractors or substitutes to perform the service which they has undertaken to provide
• the ability to accept or not accept the various tasks offered by their putative employer, or unilaterally set the maximum number of those tasks;
• the ability to provide their services to any third party, including direct competitors of the putative employer, and
• the ability to fix their own hours of ‘work’ within certain parameters and to tailor their time to suit their personal convenience rather than solely the interests of the putative employer.

It said that this is provided that the independence of that person “does not appear to be fictitious” and that it is not possible to establish the existence of a relationship of subordination between that person and the organisation using their services.

Answering a question about working time, the court said the fact that deliveries needed to be made within a certain time slot was inherent to the very nature of the service the courier was providing for Yodel. This indicates that the requirement to deliver during this time does not necessarily mean he was not given a “great deal of latitude” to conduct his work.

The CJEU did not make a judgment on the B v Yodel Delivery Network case, and stated that it was the job of the employment tribunal to use this clarification to determine the courier’s employment status.

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