In the case of Stojsavljevic and anr v DPD Group Ltd the Employment Appeal Tribunal (EAT) held that owner driver franchisees, who carried out parcel delivery and collection services for DPD, were neither employees nor workers.

BACKGROUND

The claimants in this case were 'owner driver franchisees' (ODFs) who had entered franchise agreements with DPD to operate parcel delivery services.  The claimants contended that they had been contracted by DPD as individual drivers and therefore were entitled to the rights of workers or employees. 

DPD's case hinged on personal performance and whether the ODFs had an unfettered right to substitute another driver to deliver and collect parcels. A key element of worker status is that the individual undertakes personally to perform the work or services but in this case the franchise agreement allowed the ODFs to supply a driver, either themselves or another driver, to deliver and collect parcels, they simply had to provide DPD with a copy of a proposed substitute's driving licence and complete an application form, in order to be an authorised DPD driver. 

DECISION

The EAT concluded that the claimants were independent contractors. The tribunal had correctly found that the claimant ODFs had a genuine right of substitution and such a right was inconsistent with employee and worker status.

Although in practice the claimants had only used replacement drivers who were also ODFs, or drivers of other ODFs, that did not detract from their contractual right to use any substitute of their choice at any time. Beyond requiring proof of a substitute driving licence, DPD had no broader right to refuse any substitute. 

IMPLICATIONS

The issue of whether the drivers had a genuine unfettered right of substitution was critical in this decision. This case should serve as an important reminder that employers wishing to engage genuinely self-employed contractors should ensure their contractual status matches the reality of their role and reflects the true agreement between the parties. Even if an employer has explicit substitution clauses in their contracts, an employment tribunal will always look to the reality of the relationship between the parties.