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Courier with a limited right to substitute work is classed as a worker

A moped courier, who worked under a contract for the personal performance of services, could notify other couriers if he wished to release a delivery slot. This limited right of substitution was sufficient for the courier to be classed as a “worker” under section 230(3)(b) of the Employment Rights Act 1996.

The Court of Appeal upheld the tribunal’s decision that the courier’s ability to release a slot was not unfettered substitution, since it was outside of the courier’s control whether any other courier would sign up. When the courier signed up to undertake a slot, they were required to personally perform the delivery work. The tribunal found that this satisfied the fifth category of substitution identified in the case of Pimlico Plumbers Ltd and another v Smith 2017, so the courier’s right of substitution was insufficient to negate the existence of an obligation to personally perform their work.   

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