Driver not a ‘worker’

Posted: 30th November 2012

Lorry22In an important decision that further defines the word ‘worker’ within the meaning of the Employment Rights Act 1996 (ERA), the Employment Appeal Tribunal (EAT) has ruled that a self-employed delivery driver who could, if he wished, send a substitute to perform his contractual obligations could not benefit from protection under the Act.

The driver had argued that, during at least 10 years working for delivery company UK Mail Limited as a subcontractor, he had never been aware that he was entitled under the terms of his contract to send a substitute driver to work in his place and had never in fact done so. It was argued that any substitute would have to have had an appropriate vehicle, insurance and experience and that those hurdles meant that, in practise, his contractual entitlement would have been difficult to exercise.

However, in ruling that the driver was neither an employee nor a worker, the EAT said that, as a matter of contractual interpretation, he had not been obliged to ‘perform personally any work’ for UK Mail. Whether or not he chose to exercise his right to send someone else to do his job, his contract gave him an unfettered right to do so, subject to the substitute having appropriate qualifications.

The EAT upheld UK Mail’s appeal against an Employment Judge’s earlier ruling that the driver, whilst not being an employee, did fall within the definition of ‘worker’ under Section 230 of the ERA. The driver’s claims under the Act and under the Working Time Regulations were dismissed.