There has been a recent spate of cases which may cause a headache for employers reliant on independent contractors as an integral part of their businesses. As the Court of Appeal noted in the next case of Pimlico Plumbers & Charlie Mullins v Gary Smith, the case ‘puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker.’
What do we already know?
In our November 2016 Newsflash Uber drivers are ‘workers’, we updated you on the Tribunal decision in Mr Y Aslam, Mr J Farrar and Others v Uber, that two drivers who provide services to the online taxi firm, Uber, are ‘workers’ and therefore entitled to be paid the National Minimum Wage and other rights as described in that Newsflash.
We also commented that although this decision was fact-specific, and based on Uber’s business model, it had helped increase the chance of other ‘gig economy’ companies facing claims that their ‘contractors’ have worker status.
In the case of Dewhurst v CitySprint UK Ltd, available here, the Tribunal awarded ‘worker’ status to a cycle courier who claimed that she was entitled to holiday pay. This follows the case of Uber, highlighted above, and is a further example of the direction of travel in respect of gig-economy employment status.
Facts: Ms Dewhurst was a cycle courier for CitySprint, which engages 3,200 self-employed couriers in Great Britain. She worked around four days per week in London, carrying out a series of courier jobs, wearing CitySprint uniform. Her contract stated that she was a self-employed contractor. However, she disputed this and brought a Tribunal claim for holiday pay on the basis that she was instead a ‘worker’.
The Tribunal considered the contract and the reality of the situation which was that CitySprint:
Having taken the above factors into account, the Tribunal thought that it was clear that Ms Dewhurst was in fact integrated into CitySprint’s business.
The Tribunal concluded that when CitySprint said that their couriers ‘make their services’ available to them, this was ‘window dressing’ and that Ms Dewhurst was in fact a worker, who worked during the hours that she was logged on to the CitySprint system (rather than by reference to the days that she worked). The Tribunal awarded her two days’ holiday pay. The Tribunal emphasised some key factors to take note of, including that Ms Dewhurst:
Implications: This decision serves as a further reminder to employers that there is a trend emerging whereby the status of individuals engaged in the gig economy is being challenged in the Courts. Also that Courts and Tribunals will look behind what is in the written terms and examine the reality of the situation when deciding employment status.
Both Uber and this case are Tribunal decisions and therefore do not need to be followed by other Courts and Tribunals. However, Uber has recently appealed to the EAT so watch this space…