Worker or Self Employed?

Worker or Self Employed?

The Employment Appeal Tribunal has ruled against an employer in the continuing battle over Employment Rights in the gig economy, taking DBS checks and the obligation to accept jobs when logged on, as clear indicators. 

A recent ruling in the EAT upheld the Employment Tribunal’s decision that an Addison Lee courier driver was a Worker rather than self-employed and as such, should be afforded all of the benefits and employment protections that come with worker status, such as the minimum, or living wage, and holiday pay.

Despite the Claimants’ contract stating he was an independent contractor, in August 2017, the Employment Tribunal found that this did not reflect the actual working relationship and that the Claimant was in fact a Worker.  It should be noted that the Court felt that the need for DBS checks indicated Worker status (see below).

The Company’s case was based on the assertion that they had no obligation to provide work, and the courier had no obligation to accept it.

The EAT rejected the company’s appeal because when the Claimant was logged on to the app, he had to accept the jobs offered to him. Furthermore, the company would regularly control the Claimant’s location to ensure that the Claimant was in a suitable location for further deliveries throughout the day.

The Tribunal also considered whether the Claimant had the right to send someone else to do the work on his behalf or whether he had to undertake the work personally (which is another sign that someone might be self-employed) On the facts, the Tribunal ruled that the Claimant did have to perform the contract personally as he had to have undertaken a DBS check and the EAT upheld this reasoning.

The full case report can be found here http://www.bailii.org/uk/cases/UKEAT/2018/0289_17_1105.html

Points to Remember

This is another important reminder to companies that, regardless of what is written in the contract, Tribunal’s will look and consider the reality of the working relationship to determine whether the individual has worker status and should be entitled to rights including Holiday Pay, Statutory Sick Pay and entitlement to receive National Minimum Wage.

A further point for employers to consider alongside this is the ruling from November last year concerning the length of time workers could claim for previously unpaid holiday pay. The case of King v Sash Windows (2017) concluded that a person who turns out to be a worker rather than self-employed, and who has not been able to take paid holiday, will be able to claim 4 weeks holiday pay per year of service going back to 1996.

Click here to refresh your memory of our report on this case.

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