Worker or self-employed? What's the difference?

3 mins

Posted on 11 Nov 2021

Worker or self-employed? What's the difference?

A moped courier was a worker

A moped courier was a worker, not self-employed, as he was obliged to do the work himself. His limited ability to use a substitute did not change this.  

Worker status: definition of worker

One of the specific requirements for being a worker is that the person is obliged to do the work personally. If they are genuinely free to provide a replacement to do the work instead of them, they will be self-employed, rather than a ‘worker’. 

In Stuart Delivery v Augustine, the Court of Appeal considered whether the employment tribunal had been correct to find that a courier’s limited right to ask someone else to complete a job meant he was not a worker as he was not obliged to do the work himself.  

Courier’s obligations

Stuart Delivery Ltd hosts a platform that connects clients and couriers. The platform allows for two types of jobs, either ‘ad hoc’ or ‘slot’. A courier who signs up for a slot commits to being available in a certain area at a certain time. They may release a ‘slot’ to another courier but if no one picks it up, then the original courier remains liable for completing the job. 

Courier claims to be a worker

Mr Augustine brought a number of employment tribunal claims, arguing that he was a worker. The employment tribunal had to determine whether he was obliged to do the  work ‘personally’, despite being able to release a slot to another courier.   

The employment tribunal noted that the release procedure did not give a courier an unlimited right to send a substitute to do the work: Mr Augustine would only be released if another courier signed up for the slot and he had no control of whether that happened. The employment tribunal therefore concluded that he remained obliged to do the work himself and his limited right to send a substitute did not affect this.

The Employment Appeal Tribunal agreed and the Company appealed to the Court of Appeal. 

What did the Court of Appeal decide?

The Court of Appeal dismissed the appeal and ruled that the tribunal had been entitled to decide that Mr Augustine was a worker. The issue for a tribunal is whether someone is obliged to do the work personally. The Court of Appeal agreed with the tribunal that the company expected that Mr Augustine would do the work or ‘slots’ that he signed up for, and without that expectation, its business model would not work. The right to send a substitute had such a significant limitation on it that in reality he remained obliged to do the work himself.   

What does this mean?

Employees and workers have employment protections which are not available to the self-employed, including the right to the National Minimum age and paid holiday. Demonstrating employee or worker status is therefore key.

Ultimately this case was decided on its facts but it is a good example of how the courts will  determine whether there is an obligation of personal performance. A contractual entitlement to send a substitute may be subject to so many limitations that it remains consistent with an obligation to do the work personally, meaning that the person will be a worker.  

On the other hand, where a person has an unlimited right of substitution (so there are no limits on when they can use a substitute and who they can use), there is no obligation to do the work themselves and they will be regarded as self-employed and not qualify for employment protections.   

Key Contacts :

Helen Brooks

With over 25 years’ experience, Helen is an established employment litigator and adviser working with both employers and employees. She advises on all aspects of employment law and HR strategy.

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Tina Wisener

Tina succeeded Peter Doyle as Chief Executive on 1 January 2024. She has long been recognised as one of the UKs leading employment lawyers and is ranked in the top tier of The Legal 500 and Chambers guides to the UK Legal Profession.

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Declan Bradley

Based in both the City and the UK's South West Declan is an Employment Lawyer with a focus on advising employers and senior executives across a range of industries including technology, media and finance. Declan has over a decade of experience as a UK lawyer, having worked at an international firm before joining Doyle Clayton in 2015.

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