Mr R Allen QC and Ms S Fraser-Butlin For the v Respondent — 2020

The five lead claimants were cycle couriers for City Sprint (UK) Ltd and brought claims for holiday pay under the Working Time Regulations 1998. The tribunal held that they were workers for the periods of their engagements up to and including 11 November 2017 and again from and including 12 November 2017 under the revised November 2017 tender. The respondent had already conceded worker status for the pre-12 November period for the purposes of the litigation, but the tribunal still determined the contractual position for the relevant period.

Applying Autoclenz, Bates van Winkelhof, Pimlico Plumbers and the Yodel order, the tribunal found that the November 2017 contract was a genuine agreement and, in most respects, reflected the reality on the ground. Couriers chose when to work, could reject jobs, and could work for others when not on circuit, but the tribunal found that the substitution clause was only a theoretical right in practice and that no cycle courier had ever used a substitute. The respondent was not treated as a client or customer, and the dominant feature of the relationship remained personal performance, so the claimants were workers while on circuit.

On entitlement, the tribunal accepted the claimants' reliance on King and Max-Planck and held that holiday entitlement could carry over where paid leave had not been properly provided. It found that clause 8(f) of the November contract was not sufficiently transparent or comprehensive to amount to valid rolled-up holiday pay under Robinson-Steele, and that neither the clause nor later invoices identified a specific sum referable to holiday pay or how it was calculated. No final monetary award was made in this liability judgment; the tribunal indicated that sums for the pre-12 November period might be agreed and that the remedy hearing would address the remaining quantum.