Amazon Employment Status – Mr M Johnston and others vs Amazon

Over 1,400 drivers who deliver parcels for Amazon have presented claims against the well-known online retailer.

Currently the drivers make deliveries on behalf of Amazon via ‘Delivery Service Partners’ (DSPs) and are classed as self-employed. This means they do not benefit from employee rights such as holiday pay and the National Minimum Wage.

The drivers are arguing that they should be classed as an or a worker of Amazon and/or the DSP.

However, due to the fact that the drivers make deliveries via DSPs, Amazon states that the drivers have no possible course of action against the online retailer and requested the claims were struck out.

Three sample lawsuits from claimants, Mr M Johnston, Mr I Codau and Mr Dawson, were presented at a preliminary hearing in February 2023.

The claims include holiday pay, National Minimum Wage, the right to employment particulars, breach of contract and unauthorised deductions from wages.

Amazon argued for dismissal of the claims, or alternatively for a deposit order to be made in relation to the claims, stating they had no contractual relationship with the drivers.

Courts and Tribunals apply legal tests to identify if an individual will fall into an employee, worker or self-employed status. The tests include:

1. 1. Personal Service
      Does the worker have to perform the work themselves, or can they send a substitute in their place?
   2. Mutuality of Obligation
      A responsibility to provide work, and the commitment of a worker to accept and perform that work.
   3. Control
      The decision of what work is needed, when it’s done, and the way in which it’s carried out.

You can read more about this in our employment status guide.

With these tests in mind, the following facts (amongst others) emerged from Mr Johnston’s case:

• • • Drivers apply for jobs via different media outlets, including job search websites. The role is described as ‘Amazon multi-drop delivery driver’ and involves the delivery of Amazon products only.
    • Drivers are recruited by a DSP directly, and enter a contractual agreement with the DSP where they are identified as self-employed contractors.
    • Amazon requires all drivers pass a DBS check, attend a training day at an Amazon depot, wear safety clothing and carry ID at the depot identifying them as a subcontractor.
    • Amazon is able to tell a DSP to stop a driver from delivering for Amazon.
    • Amazon tells the DSP how many parcels it has to deliver the next day and what time the driver needs to arrive at the Amazon depot to collect them.
    • The DSP will calculate how many drivers they need to complete the deliveries for Amazon, then message the drivers confirming their shift with a start time.
    • Each DSP must provide an onsite manager to coordinate deliveries.
    • The mileage rate to be paid by DSPs to drivers is set by Amazon.

As this hearing was a strike out application and not a full hearing, the in-depth details of the relationship between the DSP and Amazon were not covered. This will be examined further in the later hearing.

In March 2023, Employment Judge Spencer ruled that the lawsuits against Amazon should proceed, refusing Amazon’s request to dismiss the claims.

There was also no order made for the payment of a deposit.

The Tribunal will decide the relationship between Amazon and the delivery drivers at a later hearing. The date for this hearing has not yet been set.

A follow-up blog will be released by Indigo with the conclusion of the Tribunal.

Please get in touch for a free Business Compliance Health Check, to ensure you are engaging contractors correctly. You can learn more about how our solutions can help, here.