A year ago I wrote about the onerous terms imposed on DPD couriers, which had come to the attention of the Work and Pensions Select Committee:

“Meanwhile, it has emerged that DPD, which deliver parcels for Marks & Spencer, John Lewis and River Island, fines their couriers £150 per day if they cannot find cover when they are ill. This has resulted in drivers being forced to work when they are sick. The fine, which is described as “liquidated damages”, means that couriers who earn on average £200 a day, lose £350 if they cannot work through illness and are unable to find a substitute.”

Chair of the Committee (and my MP) Frank Field, commented at the time:

“The gig economy is producing wave after wave of evidence on the grim reality of life at the bottom of Britain’s labour market…A group of companies now controls the working lives of an unknown number of people, and yet evades its own responsibilities as employers and taxpayers by labelling those people as self-employed… This move [by DPD] makes the rest of the gig economy look as though it operates in the Garden of Eden.”

In February 2018 The Guardian reported the sad story of Don Lane, a DPD courier, who was fined £150 for attending a medical appointment to treat his diabetes and who, at age 53, subsequently collapsed and died for reasons connected with the disease. His widow, Ruth, disclosed that he had missed medical appointments because he felt under pressure to cover his round. He had collapsed twice, including once into a diabetic coma, while at the wheel of his DPD van. His fine was imposed when he went to see a specialist about eye damage caused by his diabetes. He collapsed in late December, having worked through illness during the Christmas rush and died in the Royal Bournemouth Hospital on 4 January.

The matter was raised in Parliament and there was condemnation of DPD across the political spectrum, including business secretary Greg Clark, who described Mr Lane’s death as “a terrible tragedy”.

In March 2018 DPD announced significant changes to the working conditions of its drivers. The company announced that it will be offering all of its 6000 drivers sickness and holiday pay and it is abolishing its £150 fines for missing work.

In a manner similar to the fixed hours experiment run by McDonalds last July, DPD is giving its drivers the choice to be classed as workers (with paid holidays, sick pay, access to a pension scheme while retaining payment per delivery), to be fully fledged employees with all the usual employment benefits and payment by the hour, or to remain as self-employed franchisees. Unsurprisingly, those who opt for full employment will be paid less to offset the cost of the benefits being made available.

This is all very well but is it right that the parties can pick and choose the nature of the business relationship between them? Well, of course, the answer is no. Establishing the legal status of employees, workers and the self-employed has generated a great deal of litigation and continues to do so, on the basis that, in the same way that it is not open to employers or, for that matter, employees to “opt out” of TUPE when all or part of a business is transferred, it is not in the gift of an employer to choose to confer employment status for some and not others who are, in effect, carrying out exactly the same work. I anticipate that the decision of the Supreme Court in the Pimlico Plumbers case will go a long way to resolving the current anomalies and the signs are that there will be a presumption of worker (if not employee) status in nearly all such arrangements.