Hermes Lose Tribunal

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Hermes Lose Tribunal

Postby Mike Johnson » Saturday 23 June 2018, 11:47

Hermes have lost the tribunal that couriers brought, and should now be classed as Workers under Instruction rather than self employed. (Well after they no doubt appeal and then lose again!)

Read more over here: http://www.lifestylecouriers.net/viewto ... =5&t=11105

This will no doubt have ramifications on other courier companies.
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Re: Hermes Lose Tribunal

Postby Mike Johnson » Wednesday 27 June 2018, 07:43

Read the full judges report here http://www.lifestylecouriers.net/viewto ... =5&t=11155
The judge really pulled Hermes apart. section 3.1 is very interesting
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Re: Hermes Lose Tribunal

Postby Alec » Thursday 28 June 2018, 08:40

Well I'm not a lawyer and I strongly agree that something needs to be done about this fake self-employment but in this case its seems to me that the judge has very probably got it wrong (according to the law anyway) and has gone off at a tangent, putting a lot of weight on an irrelevant fact (that doesn't even seem to have been argued by the couriers' barrister) and ignoring well known precedents.

Hermes have made some fundamental errors in trying to skirt around the law, despite giving it a really good go. But despite those errors I think they'd have got away with it if it wasn't for the ridiculous twist of logic used by the judge.

The whole judgment pivots on:

4.4 I consider that the provision of a delivery and collections service on the round in
this way is the work or service that the courier undertakes personally to perform.

4.5 When the nature of the work to be performed by the courier is understood in that
way, the focus on the nature of the right to provide a substitute to deliver the
parcels on any particular occasion assumes less importance. If the couriers could
simply inform Hermes of the days on which they were available to provide
delivery services, the question of whether and in what circumstances they could
instead send a substitute to carry out those deliveries would indeed be
fundamental to deciding whether they undertook personally to perform the work.
But where 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. I have no doubt that under the terms
of the contract the couriers are obliged personally to do that work.



I'll paraphrase that since it's not obvious what's being said.

The case would have failed if Hermes can prove that the couriers have the right to delegate all their contracted duties to another person.

Their duties comprise of covering the round for the day somehow, whether they do it themselves or not. They either do the round themselves personally or they're personally responsible for finding someone else to do it. They're not contracted to deliver parcels, they're contracted to provide a service every day, which happens to involve delivering parcels.

So although they can provide a substitute driver it makes no difference - because personally arranging a substitute driver is part of the service they're contracted to provide and unless the arrangement of the substitute is carried out by someone else (not acting under the courier's instructions) it's impossible to delegate that part of the service - the arrangement of the substitute.

That is to say, according to this judge, that the very fact that the courier has a contractual duty to provide a substitute means that it can never be a substitute for all the courier's duties - since arranging a substitute is part of the duties.

It's ridiculous, twisted logic which ignores established case law - including Express and Echo Ltd v Tanton which is almost completely analogous with this case. It's almost as if the judge decided what result he wanted and set out to twist the findings to fit. That's possibly because he'd decided that Hermes weren't playing with a straight bat and that their man was trying to mislead the court.

The other factors may well have been enough to sway the judgment in the couriers' direction anyway but it would certainly be less clear-cut without that bit of ridiculousness.

So right result for wrong reason, I wouldn't be at all surprised if was overturned on appeal though, since it contradicts previous rulings by higher courts.
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Re: Hermes Lose Tribunal

Postby Mike Johnson » Friday 29 June 2018, 08:32

Hi there Alec, thanks for your reply.

I have sent this over to the lifestylecourier forum admin and he has posted it.
Its had some replies, rather than me post them on here (as their are a few) could you perhaps visit and maybe reply?

The gist is that the case you refer to was pushing for full employment, the Hermes couriers are not and also that case you mention was 20 years ago.

www.lifestylecouriers.net/index.php

Thanks
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Re: Hermes Lose Tribunal

Postby Alec » Friday 29 June 2018, 11:15

I can't register on that site so I can't view the thread.

The Express and Echo Ltd v Tanton case relies on the Employment Rights Act 1996 and the definition of 'worker' under Section 230 of that Act. The 'personal service' and 'right to substitution' test is identical to the tests used in the Hermes case - which relies on the same Act and other acts using the same definition.

The fact that the case is 19 years old is irrelevant. Case law from hundreds of years ago still applies if it's not been refined by newer cases or overturned by higher courts. The Hermes case is an Employment Tribunal case - the lowest level. It can't just decide to apply a law in a different way to how the Court of Appeal has already decided it should be applied.

Using this judge's logic it's impossible to ever be genuinely self-employed if you sign a contract which requires you to provide cover whether or not you're able and willing to provide the service yourself - i.e. to act like a proper business. It turns the whole concept on its head.
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Re: Hermes Lose Tribunal

Postby Mike Johnson » Friday 29 June 2018, 12:50

why cant you register?
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