Why the ‘Deliveroo’ argument in the Shanks case was a non-starter

Whereas the food delivery firm Deliveroo only had the ‘bad egg’ condition on its sub clause, the sheer number of conditions spoiled the Shanks case for invigilator body SQA. 

The employment tribunal case of invigilator Mrs J Shanks was underlined last week on the Kingsbridge Blog and with good reason as I will examine here, writes Richard Crabtree, of employment law firm Chartergates. 

‘Shanks’ (sort of) follows in Pimlico’s steps 

But the ‘Shanks’ ruling itself doesn’t break any new ground, as the blogged-about issue of substitution and ‘illness-only’ clauses has been covered by one of the Pimlico Plumbers cases from 2017.  

That said, the Shanks case does provide some useful reminders, and some interesting points of difference on substitution when pitted against the well-known Deliveroo case.  

For us status wonks, ‘Shanks’ also shows how an employment tribunal, at first instance, deals with holiday pay and ‘worker’ status claims in 2025.  

Remember, ‘Shanks’ is a direct engagement case… 

While limited company contractors interested in IR35 can be ‘let into the room’ to hear the useful reminders, it should be borne in mind that this exam invigilator case concerns a direct engagement.  

Nonetheless, the judgment in ‘Shanks’ from employment judge Muriel Robison is useful.  

Whether an individual is a ‘worker’… 

It’s useful because it highlights to those who are providing services via intermediaries that, before any analysis as to whether an individual is a “worker”, there must first exist a contract between the individual and the end-hirer. 

In the Shanks case, the end-hirer was the Scottish Qualifications Authority (SQA). 

But be aware of the differences if you’re a limited company (or Personal Service Company) contractor.  

A higher bar to hit 

With an intermediary, there would be no direct contract between the individual and the end-hirer. 

Therefore, the individual would have to persuade a tribunal to imply one – a more difficult task as they will only imply if it is necessary.  

And I don’t mean ‘necessary’ in respect of any claim, but of necessity to the business relationship, usually by finding the existing contract a sham.  

Two hurdles faced Mrs J Shanks… 

In having a direct contract with SQA, Mrs Shanks had no issue at this first hurdle.  

The second hurdle was the requirement for personal service.  

Interestingly, the contract between the claimant and SQA did not appear to have contained a written substitution clause.  

SQA were therefore reliant on evidence of what had happened and what they thought would have happened, in practice.  

Shift swapping, involvement, and illness-only exercising 

The problem that SQA faced is that this two-fold ‘evidence’ overwhelmingly tended to show an informal practice developing of individuals “swapping shifts”.  

And such shift-swapping was only with the involvement of the SQA (or their agents), and in circumstances where the invigilator who initiated the swap was indisposed due to illness or medical appointments.  

Where ‘Shanks’ chimes with Pimlico Plumbers at the Supreme Court (2017) 

On the facts, this was similar to that of the 2017 case of Pimlico Plumbers v Smith, where it was held the individuals did have to provide personal service.  

I cited this important case at this article’s outset. 

In Pimlico v Smith, there was likewise no express substitution clause, and similarly, an informal practice of the plumbers swapping shifts due to illness.  

In its January 2017 ruling in ‘Pimlico’ but in favour of plumber Gary Smith as a ‘worker’, the Court of Appeal (CoA) held that “a right of substitution only when the contactor is unable to carry out the work will…be consistent with personal performance”.  

This determination by the CoA in ‘Pimlico’ is central to the decision in ‘Shanks’ and is cited at 131 of the judgment. 

Where ‘Shanks’ differs from ‘Deliveroo’ 

Some commentators on the Shanks case have been quick to point out that SQA tried, but failed, to argue that the invigilators were identical to riders in the Deliveroo case.  

The difference between SQA (and Pimlico Plumbers) with the 2016 Deliveroo case is that the food delivery company not only had an express substitution clause for the drivers, but in practice they operated it without any restrictions. 

What were the substitution differences between ‘Shanks’ and ‘Deliveroo’? 

The only ‘limiter’ – to borrow the preferred term of Kingsbridge IR35 Consultancy Manager Matt Tyler – was that Deliveroo required the substitute to not be someone who they had previously terminated a contract with.  

This is the so-called ‘bad egg’ condition.  

Except in the case of the ‘bad egg,’ Deliveroo was not aware of the identity of the substitute, or the fact that one had been used on any particular occasion. 

When evidence impresses (and doesn’t) can be key  

In the food delivery firm’s case, this meant that although substitution was hardly ever used by the drivers (why would they substitute when they could simply choose not to log in), the lack of control that Deliveroo had over them impressed the court, comfortably convincing it that there was genuinely no requirement to personal service.   

As to who the court were impressed with in the Shanks case, it is extremely clear from the judgment that the claimant’s evidence was markedly preferred over SQA’s evidence. 

Win at tribunal, or else risk being like the hamstrung union in ‘Deliveroo’ 

But let’s ride back to ‘Deliveroo’ for one last important point. 

The union fighting Deliveroo was very determined and went all the way to the Supreme Court.  

But the union could only do so on the grounds of ‘freedom of association under human rights legislation’ (and it’s a case that did not succeed for the union).  

Why was the union hamstrung, and confined to such limited grounds?  

Well, the lack of personal service (i.e. that the substitution clauses were genuine and unfettered) was a finding of fact that could not be challenged or turned on its head on appeal.  

It goes some way to attest to the importance of the findings of fact at the initial tribunal stage. 

Final Shanks-Deliveroo takeaways for contractors  

Whether the engagement is direct or via an intermediary, the Shanks v SQA case is a useful reminder to parties that if they are to be contracting on the basis that the individual is not a worker, then they should ensure that the hirer/end-hirer has as little input into who does the work.  

And that very small input should include giving the individual Personal Service Company contractor as much ‘leeway’ to send anyone as is reasonably possible – both in practice and in the written terms.  

How Kingsbridge can help 

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