The ECJ has ruled on the definition of worker status under the EU Working Time Directive in the case of B v Yodel Delivery Network Ltd – is this good news for businesses? Time will tell.
The Working Time Regulations (1998) (WTR) transposes the EU Working Time Directive (WTD). Regulation 2 of the WTR, provides that a ‘worker’ means an individual who enters into or works under a contract of employment or any other contract, whether oral or in writing or express or implied, whereby the individual undertakes to perform personally any work or services for another party. The WTD does not specifically define ‘worker’ but bases the definition on EU case law.
In this case, B worked as a delivery driver for Yodel Delivery Network Ltd (Yodel) pursuant to a courier services agreement, which stipulated that the delivery driver was a ‘self-employed, independent contractor’. He began working for Yodel in 2017. He used his own vehicle to make the deliveries and was free to decide when to deliver the parcels, providing it was between the hours of 7.30 and 21.00. He was free to appoint a substitute to deliver the parcels, although Yodel could veto the choice if the substitute was not at the required skill/qualification. There was no obligation on the individual to accept any parcel for delivery and he could work for other delivery service providers.
B brought a claim against Yodel, claiming worker status for the purpose of the WTR. The Employment Tribunal (ET) stayed the proceedings in order to refer questions surrounding worker status to the European Court of Justice (ECJ). This is relevant because classifying an individual as ‘self-employed’ under national law (WTR), would not necessarily preclude them being a ‘worker’ under EU law (WTD).
Although the ECJ noted that it is for the ET to form a judgement, taking into account relevant case law as to whether B could be considered a ‘worker’, it made several useful remarks to guide the ET. It noted that B appears to have a ‘great deal of latitude’ in relation to his engagement with Yodel and the ET should consider if that latitude confers real independence on B (rather than merely a ‘notional’ independence). In considering that it held:
- B has the discretion to appoint a substitute, conditional only on the substitute having the requisite skills and qualification (Yodel’s control over the choice of substitute is therefore very limited);
- B has an absolute right not to accept the tasks assigned to him;
- B has the freedom to work for other competitors;
- The requirement for B’s ‘working time’ to take place during specific time slots is ‘inherent to the very nature’ and proper performance of the delivery service.
On the above basis, the ECJ concluded that the independence of the individual appeared ‘not to be fictitious’ and there did not appear to be a relationship of subordination between him and Yodel
Although this is a very helpful case for businesses who rely on providing their service through a network of independent contractors, the ECJ has noted that it is for the ET to form its own opinion, taking into account all of the relevant factors (noted above) before classifying the person’s status. Further, it is also important to flag that the ECJ in particular noted that in this case, the independence of B (including his ability to appoint a substitute and work for competitors) was considered to be genuine. This is a useful reminder that courts will generally always look behind the contract itself to understand the true nature of a relationship in order to determine worker/employment status.