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Amy White

Associate Solicitor - Uckfield

17th February 2017

Employment Status – The Chaos Continues…

At the end of last year we summarised the ruling in Aslam, Farrar and Others v Uber, a case in which the Employment Tribunal decided that two allegedly self employed taxi drivers working under the ‘Uber’ banner were actually ‘workers’ engaged by Uber and entitled to basic employment rights.  It would seem however, that the Uber judgment was just the tip of the iceberg.  Since that case was decided, two other high profile decisions have been handed down and more are on the horizon.

In Dewhurst v CitySprint UK Limited a bike courier – Ms Dewhurst – claimed that she was not, as suggested by CitySprint, an independent contractor but rather a ‘worker’ entitled to basic employment rights, including holiday pay. The Employment Tribunal agreed.  The Judge was not persuaded that Ms Dewhurst was in business on her own account.  Rather, she stated that Ms Dewhurst’s engagement by CitySprint was “not a commercial venture between two corporate entities”’ but actually a situation in which there was clear inequality of bargaining power between the parties, one of which plainly controlled the other. She also criticised the contract Ms Dewhurst had been provided alleging that she was an independent contractor, calling it ‘indecipherable’ and ‘window dressing’.

More recently, in Pimlico Plumbers and anor v Smith, the Court of Appeal was asked to consider the employment status of Mr Smith, a plumber who had spent six years working solely for one plumbing firm (Pimlico) on a full time basis.  In finding that Mr Smith was a worker engaged by Pimlico, rather than a self employed contractor as Pimlico had sought to suggest, the Court followed the earlier rulings of the Employment Tribunal and the Appeal Tribunal and cited a range of key factors. Mr Smith’s work was highly restricted, in that he could not freely carry out work on his own behalf or for other companies while working for Pimlico and for three months thereafter; he was also heavily controlled by Pimlico who required him to work for a minimum of 36 hours a week, would not permit customers to contact him directly and stipulated that he had to use a Pimlico van when attending jobs.  Finally, while Mr Smith was allowed to swap jobs with other Pimlico plumbers, he was not given an unrestricted right to send a substitute to carry out his jobs for him – he had to personally provide his services.

In light of these factors, the Court of Appeal did not feel able to find that Mr Smith was in business on his own account, carrying out services for Pimlico on a self employed basis or that Pimlico was one of Mr Smith’s clients or customers.  Rather, the Court felt that he was a worker engaged by Pimlico and therefore entitled to the basic legal protections workers are afforded.

Cases such as these are complex and each is decided on its own facts.  As such, it’s important not to suggest that these decisions will be followed in all future cases or that they lay down a clear precedent employers can seek to rely on without variation in the future.  In fact, in the Pimlico case, Lord Justice Underhill actually warned against trying to draw any “very general conclusions” from the Court’s ruling and highlighted how “very live” the question of when a relationship is genuinely ‘casual’ is, at present.

However, while drawing general conclusions based on this new case law is perhaps not yet possible, cases such as Uber, CitySprint and Pimlico do serve to highlight just how much confusion still exists in connection with the question of ‘employment status’ and will hopefully push the Government to provide clearer guidance and support for those engaged in more flexible forms of work.  This already seems to be happening with the Government announcing a six month review of modern working practices following these recent rulings, please click here to learn more.

This issue is clearly one that’s going to run and run.  By way of example, Jason Moyer-Lee, the head of the Independent Workers Union of Great Britain (IWGB), is backing cases against other courier firms including Addison Lee, eCourier and Excel.  Hearings in those cases are scheduled to take place in March and April 2017.  The IWGB is also in talks with Deliveroo on behalf of a group of couriers in Brighton in connection with their pay and hours.  We will, of course, keep you updated as matters progress but for now it really is a case of watch this space…

If you would like further information or advice on employment status and the engagement of casual or self employed staff, please contact Amy White, Solicitor at our Uckfield office (amywhite@rixandkay.co.uk) or Miranda Martin, Partner at our Brighton & Hove office (mirandamartin@rixandkay.co.uk).

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