20 hours ago
“I thought they were self-employed, so I didn’t pay them holiday!”
The now famous case of the Pimlico Plumbers, which we have reported on twice already when in the lower courts, has now been heard in the Supreme Court and there are no surprises in the judgement. This was a case of a plumbing company who used what it thought were self-employed plumbers. The truth is, the plumbers also thought that they were self-employed. As a consequence, they did not get holiday pay.
The difference in the two types of person is that as self-employed, a person does not get the right top holiday, minimum wage or to claim discrimination. A worker on the other hand gets all three of those rights.
After a reasonably successful relationship, one plumber left and claimed he was a worker, and not self-employed. The employer felt that he was self-employed. He paid his own stamp and called himself self-employed.
The supreme court has found that the original judgement ruling that he was a worker was correct, and he was not self-employed.
The key features that were focused upon were:
- Mr Smith was expected to carry out any work himself
- Mr Smith had his uniform controlled by the company
- Mr Smith did not control when he did work and how much he was paid
Although Mr Smith could also arrange for a substitute to carry out work for him (a fact which is less likely to be consistent with being a worker), that substitute had to be someone else working for Pimlico Plumbers. So, the right of substitution was not without restriction.
It should also be noted that although Mr Smith could turn work down and carried some of the financial risk, it did not outweigh the other issues.
The law is moving now in a clear direction on this subject. If someone is properly in business on their own account, selling services to the general public and other customers or clients, having a web site for example advertising what they do to all and sundry, then they are likely to be self-employed.
If however the person is providing his service to mainly one user, and is controlled by that user, then the relationship is much more likely to be that of Worker. As a worker, the person can claim unpaid holiday (5.6 weeks a year), the minimum wage, and discrimination against the company.