DPD drivers not workers or employees

DPD drivers not workers or employees

In what will be (to some) a surprising ruling, DPD drivers were judged not to be workers. Shortly before the Christmas break the Employment Appeal Tribunal ruled, in Stojsavljevic and another v DPD Group UK Ltd (EA-2019-000259), that DPD owner driver franchisees (ODFs) were not workers or employees, and therefore not entitled to the rights bestowed upon either category.

At first glance and in the context of previous decisions on Uber, Pimlico Plumbers etc. this looks like an odd decision. The reason why the EAT ruled this way serves as a useful reminder to those wishing to employ contractors without triggering employment or worker rights.

Substitution

The DPD case highlights the importance of substitution, and this was the central deciding factor in this case. The DPD ODF’s contracts clearly stated that the ODF needed to supply a driver, who need not be the franchisee themselves.

Unfettered right of substitution proves instrumental to decision that DPD drivers are not workers

An argument that DPD had some control over who the substitute could be failed – all DPD needed to know was that the driver was qualified, i.e. proof that they were 21 or over, had a license to drive and had undergone relevant training. Beyond this DPD had no contractual right to object to any particular individual, and so the DPD ODF effectively had an unfettered right to supply whomsoever they chose to drive their van as a substitute for themselves.

Lack of evidence of actual substitution not significant

In practice the DPD OFD drivers only ever covered for each other, and a non DPD ODF had not historically been substituted in. Could this matter of fact have changed the tribunal’s view, and suggested that in practice there was no real unfettered right to provide a substitute? No, said the EAT – the fact that a fully external substitute hadn’t been drafted in so far didn’t mean that a non DPD ODF couldn’t be used as a substitute in the future, and the DPD OFDs had a clear contractual right to do so.

What lessons does the DPD case offer for those employing contractors?

The issue of substitution was critical in deciding that the franchisee DPD drivers were not workers, and is an extremely important topic for those wishing to employ genuinely self-employed contractors. If there is any suggestion, either in the wording of the contract, or in the practices employed, that a contractor cannot send a substitute for themselves, it is likely they would be deemed a worker, an off-payroll worker, or an employee, entitled to all of the rights these categories carry for holiday pay, minimum wage etc. and protection from unfair dismissal in the case of employees.

It’s also clear though (and this was originally an output from the Pimlico case) that employers are perfectly entitled to check that the substitute person’s qualifications are in order. In this case DPD also required evidence of a minimum level of training, and none of these requirements amounted to a fettering of the right of substitution that might have produced a different outcome.

Could an employer’s permitted pre-checks extend to an interview of the substitute?

Almost certainly not, the checks in the DPD case were very much a matter of fact with little room for subjectivity. If an employer were to undertake a more traditional selection process in which it may reject an otherwise qualified candidate, this would not amount to an unfettered right to supply a substitute.

As ever, reality is the key

Our advice to anyone employing contractors is, as ever, to ensure that their contractual status matches reality. Many business owners are prepared to write substitution clauses into their contracts in the hope that this will protect them from employment related claims. If in reality the business is employing someone to personally provide services, and a substitute outside of its control or influence would not be welcomed, or indeed possible, the likelihood is that the contractor will be found to be a worker, irrespective of what the contract says.

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