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Yodels couriers with a lot of autonomy are not workers under the WTD

Makbool Javaid, Partner - Simons Muirhead & Burton

In B v Yodel Delivery Network Ltd, a Watford ET asked the ECJ whether a courier whose status was described as a ‘self-employed’ contractor, was a worker under the Working Time Directive (WTD). Unlike couriers/drivers in other gig economy platforms Yodel couriers have a lot of autonomy, i.e. Yodel are under no obligation to provide work and couriers can turn jobs down, they can appoint substitutes and are liable for their actions, they can choose when to deliver (within a time frame), and they can work for other delivery companies. In a reasoned order the ECJ stated that a self-employed independent contractor is not a ‘worker’ within the WTD where that person has the discretion: (a) to use substitutes; (b) to accept or not accept tasks; (c) to provide his services to a third party including direct competitors; and, (d) to fix his own hours of work within certain parameters.  This is provided that the person’s independence is not fictitious and there is no relationship of subordination between that person and the contracting organisation. Ultimately, however, it is for national courts to decide a person’s status under the WTD, taking account of all the relevant factors. Note that this case turns on its own very specific set of facts and is not a green light for gig economy platforms to argue that their drivers/couriers are not ‘workers’.

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