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Can a Self-Employed Independent Contractor Be Classified As a Worker Under the Working Time Directive?

on Thursday, 07 May 2020.

Possibly, however this will depend on the particular circumstances of the case and the working relationship in reality.

In the case of B v Yodel Delivery Network Ltd, the Court of Justice of the European Court (CJEU) was asked to make a preliminary ruling on the interpretation of the Working Time Directive 2003 ('WTD'). The purpose of the request was to determine whether B was in fact a worker under the WTD despite his service agreement with Yodel classifying him as a 'self-employed independent contractor'.

The Working Relationship in Practice

B was a parcel delivery courier for Yodel and made a claim for holiday pay. B's courier services agreement provided that he was a 'self-employed independent contractor'. B used his own vehicle to deliver parcels and his own mobile telephone to communicate with Yodel. Under the agreement, B was allowed to appoint a substitute for the whole or part of the service he provided, although Yodel was allowed to veto the substitute if the substitute did not have the level of skill and qualifications equal to that required by a Yodel courier. Under the agreement, B was also allowed to deliver parcels for third parties and B could fix a maximum number of parcels which he was willing to deliver. B had flexibility to decide when to deliver non-fixed time deliveries and to set the route of deliveries to suit his own personal convenience.


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Self-Employed Independent Contractor or Worker?

The CJEU noted that there is no definition of "worker" in the WTD, however case law has established that the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person in return for remuneration.

The CJEU identified the key factors that the Employment Tribunal would need to consider in determining whether B could be classified as a worker for the purposes of the WTD, which included that B had discretion:

  • to use subcontractors or substitute to person the service he has undertaken to provide
  • to choose which tasks to accept from his employer, or unilaterally set the maximum number of those tasks
  • to provide his services to any third party, including direct competitors of the employer
  • to fix his own hours of ‘work’ within certain parameters and to tailor his time to suit his personal convenience rather than solely the interests of the employer

In light of the circumstances of the case, the CJEU held that B appeared to have a great deal of latitude in relation to his employer and there appeared to be no relationship of subordination between B and Yodel. This suggested that he would not be a worker under the WTD, however this would be a matter for the Employment Tribunal to determine on further analysis of the relationship in reality.

Points to Consider

The CJEU noted that an employment relationship implies the existence of a hierarchical relationship between a worker and his employer. However each case will turn on its own particular facts and the relationship in reality. In its judgment, the CJEU noted that more leeway in terms of choice of the type of work and tasks to be undertaken, of the manner in which those tasks are to be performed, and of the time and place of work as well as more freedom in the recruitment of his/her own staff are the features which are typically associated with being an independent service provider.


If you require specialist legal advice relating to status of workers, please contact Eleanor Boyd in our Employment Law team on 07393 148 143 ,or complete the form below.

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