Mr. David Stephenson – Counsel For the v Respondent — 2018

The tribunal heard joined preliminary issues in the claims brought by Mr Stojsavljevic and Mr Turner against DPD Group UK Ltd. The central question was whether the franchise arrangements were genuine agreements under which the claimants could substitute another driver, or whether the reality of the arrangements required personal service. The parties agreed that the focus was substitution and personal performance, so the tribunal did not go on to assess control, integration, economic reality, neutrality of obligation, financial considerations or organisational factors.

The tribunal accepted that the franchise agreements, vehicle hire agreements and operating manual were genuine commercial documents and that the claimants entered them knowing their terms. It found that the respondent operated both employee and franchise models, that the claimants were offered a genuine choice between the two, and that the claimants knew at interview and during induction that the franchise structure was distinct from employment. The tribunal also accepted that minimum requirements for cover drivers, training and authorisation were operational requirements for the service and did not remove the contractual ability to nominate another driver.

The evidence showed that other franchisees used additional, permanent and temporary drivers, and that the claimants themselves had used substitute drivers. The tribunal found that the rejection of Mr Trendov was more likely than not because his previous franchise had ended on medical grounds, rather than because the respondent was imposing a general veto on substitutions. It held that the claimants were free to nominate drivers of their choice, subject to the minimum legal and operational requirements needed to deliver the service.

On that basis, the tribunal found that Mr Stojsavljevic and Mr Turner were not employees or workers for the purposes of the Employment Rights Act 1996, that Mr Turner was not a worker within s.43K(1) ERA 1996, and that he was not in employment for the purposes of s.83(2)(a) Equality Act 2010. The pleaded claims for constructive dismissal, unlawful deductions, holiday pay, whistleblowing, disability discrimination, statutory sick pay, Health and Safety allegations and failure to provide particulars could not proceed on those findings.