Amazon is their target, but a claim by the retailer’s contract drivers is an attack on James V Greenwich

You might have to cast your mind back a bit but, in May 2008, the Court of Appeal case of James v Greenwich hit the headlines – and with good reason.

A (current) selling point

The James case set the tone thereafter, as the Appeal Court clarified, in summary, that agency workers will not normally be regarded as implied employees of the hirer, unless they work in a way not reflected in the workers’ agreement with the agency.

Both hirers and agencies have relied on this case ever since, to the extent that the James judgment is a major selling point for clients to use temp and contractor employment businesses who can offer security against employment claims, writes Lawspeed managing director Adrian Marlowe, chair of the Association of Recruitment Consultancies.

An attack on James

Nothing has really changed for 15 years. However into this scene, arrives a claim by multiple drivers against online retailer Amazon and its supplier companies. And this claim represents an attack on the James case.

To help you cut to the significance, think of Amazon as the hirer, and the outsource company providing the drivers as agencies. Whether the outsource company / companies are genuinely providing a service other than supply of workers or are actually employment businesses supplying workers to Amazon, will be a question to be answered; they certainly could be if that is how their businesses are shaped in reality. If they are, the individuals will likely be agency workers entitled to worker rights and the ‘agencies’ liable to treat each as deemed employees for tax purposes.

Hype, sham, and questions

However the press and publicity stemming from this February 2023 employment tribunal hearing, is currently all about the drivers suing Amazon for worker or employee rights.

The James case is an obstacle which will need addressing. Is there a need to look behind the contracts, on the basis that they do not reflect what is intended and agreed? While the contract between Amazon and its supplier may be partially a ‘sham’ (in that it is actually a supply contract in everything but name), is this enough to justify a full review?

The denial that the individual drivers actually work for Amazon looks as if it can be challenged by the degree of control Amazon had over the individual drivers’ work.

Who was directing the drivers? Who ultimately decided where they should go to pick up and deliver goods? And how long should the individuals take to get to or stay at a destination?

Given it is understood that the drivers had to follow instructions on an Amazon app, it is hard to argue that control is exercised by anyone other than Amazon. But so what? The supplier companies appear to be acting no differently from an employment business in a typical supply situation where the hirer exercises direction and control. There may be an exception to ‘the norm,’ as presumably the suppliers take responsibility for all the drivers’ actions, but arguably legal responsibility is a commercial issue, not an employment one.

Control, a test only to be potentially outdone by the James test

Control is the central issue, and where the control is for all intents and purposes at the behest of Amazon, then it is the retailer which is likely to be seen as ‘the boss’ -- responsible for the rights. That is, except for James v Greenwich which directs the court to consider whether there is a need to look behind the contracts, and if not, the contracts and relationships stand as they are.

It is arguable that there is no such need. The contracts seemingly reflect what was intended. Even the drivers knew what terms they were signing up to. Since the James case may defeat the claim against Amazon, it appears that it could be the outsource companies which should provide the drivers with worker rights and rights under the Agency Workers Regulations. All would be well if the rights had been provided from the outset.

Regardless of lawyers’ love for debating Uber et al (and acknowledging of course that these kinds of cases will continue to emerge wherever rights are denied), on the scant details available at this stage -- and on basic principles, the outcome of the Amazon case is likely to be drivers succeeding against their immediate employers, namely the outsource supplier or ‘agency’ companies.

Finally, is it already damage-done in the Amazon case?

Amazon may well win but which business in its right mind will agree to service Amazon on the same basis going forwards? Use of Amazon as an attention-seeking tool will have achieved the objective.