Employment Cases Update

Leyland & Ors v Hermes ET/1800575/2017

Date published: 20/07/2018

An EJ has ruled that couriers for Hermes are limb (b) workers within the meaning of s230(2)(b) Employment Rights Act 1996, regulation 2(1) Working Time Regulations 1998 and s 54(3)(b) National Minimum Wage Act 1998.

In this case the principal focus of the dispute is on whether these are contracts under which the Claimants undertake to perform the work "personally. The second part of the limb (b) definition concerns the question whether under the contract Hermes is the client or customer of business undertakings carried on by the couriers.

The EJ said that a significant proportion of the employment contract is devoted to terms plainly designed with the purpose of ensuring that couriers do not satisfy the requirements of limb (b), for example the right to substitute or to work for competitors and the purported lack of mutuality of obligation. The terms of the written agreement as a whole and the circumstances in which it is signed are both consistent with the written agreement not being a true or full reflection of the legal obligations. The way in which the parties conducted themselves in practice on key aspects also points to a difference between the actual, agreed legal obligations and the written terms. On the mutuality of obligation issue, the contract obliges the courier more broadly to provide a delivery service every (relevant) day, whether by delivering the parcels him or herself, or by sourcing somebody else to do so. The question is whether the courier undertakes personally to perform that work and the EJ had no doubt that under the terms of the contract the couriers are obliged personally to do that work. The EJ also ruled that the terms of the contract and the way in which the parties operate in practice point overwhelmingly to the fact that these are contracts that fall within the field of dependent work relationships. The Hermes couriers undertake personally to perform work and Hermes is not a client of a business undertaking of theirs. They are properly regarded as limb (b) workers.

Read the full text of the ET judgment here