After the recent Uber drivers case, the gig economy remains in the headlines after the Court of Appeal upheld the EAT decision that a plumber was a “worker” for Pimlico Plumbers, and not a self-employed contractor…
Mr Smith was engaged by Pimlico Plumbers from 2005 to 2011, and his contract referred to him as a “self-employed operative”. When Pimlico terminated Mr Smith’s engagement, he brought several claims in the Employment Tribunal, including amongst others, for unfair dismissal, sick pay, holiday pay and disability discrimination. To succeed in the unfair dismissal and sick pay claims, Mr Smith had to demonstrate that he was an employee for the purposes of the Employment Rights Act (ERA) 1996. For the other claims to be successful, he needed to show that he was a “worker” employed under a contract personally to do work.
Agreeing with both the Employment Tribunal and EAT, the Court of Appeal held that he was a worker, meaning that his unfair dismissal claim failed, but he was entitled to pursue his discrimination and holiday pay complaints.
Distinguishing between a worker and an employee is a fact-sensitive exercise and not always straightforward. There were several aspects of Mr Smith’s case that hinted at self-employment, such as his being required to provide his own tools and equipment, and deal with his own tax and national insurance. However, ultimately the degree of control Pimlico exerted over Mr Smith was too great for him to qualify as a self-employed contractor: the Court noted that Mr Smith was required to wear a Pimlico uniform; drive a company van leased from Pimlico which bore their logo; he had to provide work personally for a minimum number of hours per week or on days agreed; and did not have an unfettered right to substitute himself for another plumber. The fact he was also subject to a restrictive covenant which precluded him from working as a plumber in any part of Greater London for three months following the termination of the relationship was considered persuasive.
The decision follows a recent trend of courts conferring employment rights on individuals operating in the gig-economy – and whilst Pimlico is likely to appeal to the Supreme Court, there can be little doubt that this particular business model is under some threat.
Thanks to Bird and Bird