The CJEU has given its ruling (technically a ‘reasoned order’) in B v Yodel Delivery Network. The case concerns the worker status of a delivery driver. Chris Milsom acts for the Claimant. Jason Galbraith-Marten QC and Navid Pourghazi act for the Respondent. In this blog Olivia Faith Dobbie analyses what the court decided and considers its implications going forwards.
On 22 April the CJEU issued a decision in the worker-status case of B v Yodel Delivery Network Ltd C-692/19. The case was already a fairly unusual one, the reference for a preliminary hearing having been made by the Watford ET shortly before the UK was due to leave the EU last autumn. It has now taken an even more unusual course, the CJEU deciding to issue a ‘reasoned order’ under Art. 99 of the Rules of Procedure of the Court without inviting oral or even written submissions from the parties. Art. 99 provides:
‘Where a question referred to the Court for a preliminary ruling is identical to a question on which the Court has already ruled, where the reply to such a question may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.’
In its judgment the Court repeated the well-known test that, under EU law. Firstly, the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. And, secondly, that the classification of an ‘independent contractor’ under national law does not prevent that person being classified as an employee, within the meaning of EU law, if his independence is merely notional, thereby disguising an employment relationship.
B is employed by Yodel as a delivery driver. Like many such couriers, he has a degree of flexibility over his working hours and is also free to work for third parties, including competitors of Yodel, during his normal working hours. Under Yodel’s standard terms and conditions (which, for the record, B disputes ever signing) he is also free to sub-contract work or use a substitute, so long as any substitute is suitably qualified to do the work.
On those facts the CJEU, “in order to give a useful answer to the referring court”, made the following observations:
- the amount of latitude B had in relation to his employer was important;
- it was necessary to examine whether the apparent independence that latitude gave him was real or merely notional;
- it was additionally necessary to ascertain whether B was in a relationship of subordination with Yodel;
- it was significant that the limitations on B’s right to provide a substitute were very limited, essentially the substitution could be anyone who had basic qualifications and skills for the job equivalent to B’;
- it was of great significance the B had an absolute right to accept or reject tasks assigned to him and that he had the right to provide his services to Yodel’s direct competitors;
- finally, while it was true that B had to provide the services within particular timeslots that simply reflected the inherent nature of Yodel’s business.
The CJEU, whilst recognising that the final outcome of the case is a matter for the domestic court, did in fact (and unusually) express a firm view:
‘In the light of all those factors, first, the independence of a courier, such as that at issue in the main proceedings, does not appear to be fictitious and, second, there does not appear, a priori, to be a relationship of subordination between him and his putative employer.’
In answer to a specific question referred, the Court ruled that Directive 2003/88;
- ‘… must be interpreted as precluding a person engaged by his putative employer under a services agreement which stipulates that he is a self-employed independent contractor from being classified as a ‘worker’ for the purposes of that directive, where that person is afforded discretion:
- to use subcontractors or substitutes to perform the service which he has undertaken to provide;
- to accept or not accept the various tasks offered by his putative employer, or unilaterally set the maximum number of those tasks;
- to provide his services to any third party, including direct competitors of the putative employer, and
- to fix his own hours of ‘work’ within certain parameters and to tailor his time to suit his personal convenience rather than solely the interests of the putative employer, provided that, first, the independence of that person does not appear to be fictitious and, second, it is not possible to establish the existence of a relationship of subordination between that person and his putative employer. However, it is for the referring court, taking account of all the relevant factors relating to that person and to the economic activity he carries on, to classify that person’s professional status under Directive 2003/88.’
Whilst the tenor of the decision is clear (B, on the stated facts, is not Yodel’s worker) the provisos are interesting. The first is broadly in line with domestic jurisprudence and in particular the Autoclenz v Belcher ‘sham’ test. The second is not entirely clear. It either sets the bar very high (so that if it is merely possible to establish a relationship of subordination, perhaps with a focus on contractual obligations, the individual is or may still be a worker) or is fact-specific, opening the door to arguments about what happens in practice.
Frustratingly, the Court declined to give any answer, or even any guidance on, one question which has vexed employment lawyers for some time. How is working time to be calculated, assuming worker-status, given:
- that the individual is not required to work fixed hours but is free to determine his or her own working hours (within certain parameters);
- the individual is not required to work exclusively for the putative employer during those hours; and/or
- that certain activities performed during those hours (e.g. driving) may benefit both the putative employer and a third party.
As often happens, the decision of the CJEU poses as many questions as it answers. Perhaps it would have been assisted by submissions from the parties after all.
Cloisters’ employment law barristers are leading experts in worker status issues. Please contact the clerks for further details of our work.