It will come as no surprise to those who have been following the employment status claims that the EAT in Addison Lee ltd v Gascoigne recently upheld the tribunal finding, from September last year, that cycle couriers are workers and not self-employed.
Briefly, to establish worker status it is necessary to determine if there is a contract between the parties, if there is an obligation of personal service by the individual carrying out the work, and what the relationship is between the parties - specifically is the person undertaking the work carrying on a profession or business and, if so, can the "employer" be properly characterised as a client or customer of that profession or business.
Key to determining whether a contract exists is the question of whether there is mutuality of obligation between the parties, and it was on that point that Addison Lee based their first ground of appeal. Amongst other things, Mr Gascoigne's contract had provided that he was an independent contractor who could choose the days and times he worked, that there was no obligation on Addison Lee to offer work or for Mr Gascoigne to accept it, but that when he was logged into an Addison Lee app he would be deemed to be available and willing for work. However, the tribunal at first instance had not accepted that the contractual documentation reflected the reality of the relationship.
Addison Lee appealed on the basis that the tribunal had erred in (i) its finding that there was an obligation on Mr Gascoigne to perform work and (ii) the multi factorial assessment that he was a worker was perverse. They did not challenge the finding that the contract did not reflect the reality of the situation.
The EAT upheld the tribunal's finding that, during logged on periods, there was a contractual relationship between the parties where Addison Lee were obliged to offer work and Mr Gascoigne was obliged to accept it and that was not undermined by the fact that Mr Gascoigne was entitled to log off at any time.
The consultation on employment status which was published concurrently with the Government's response to the Taylor Review closed on 1 June. While it is intended to retain the 3 tier system of employment status (employee, worker and self employed) it is to be hoped that new guidance and/or legislation will provide greater clarity for businesses and individuals in this tricky area.