The Court of Appeal has issued its decision in the highly publicised case of Pimlico Plumbers Ltd and Mullins v Smith. The case centres on whether Mr Smith was working for Pimlico Plumbers ("Pimlico") on a self employed basis, or whether he was in fact a worker with rights including minimum wage and holiday pay.
Mr Smith had worked for Pimlico for over 5 years when he suffered a heart attack. His contract was terminated approximately 4 months later and he subsequently made a number of claims to the Employment Tribunal including unfair dismissal, disability discrimination and for holiday pay.
The relevant documentation described Mr Smith as an independent contractor in business on his own account. It also stated that there was no obligation for Pimlico to offer him work or for him to accept it, but he was to complete a minimum of 40 hours per week. Other provisions required Mr Smith to provide his own tools and bear a financial risk if a customer didn't pay. He also had to drive a branded van and wear a branded uniform. He could swap jobs with other Pimlico plumbers and bring in specialists if he didn't have the necessary skills for a job.
Both the Tribunal and the Employment Appeal Tribunal found that Mr Smith was a worker and not in business on his own account. Pimlico appealed and the Court of Appeal has now dismissed that appeal, agreeing that Mr Smith is a worker. Pimlico have indicated that they are considering an appeal to the Supreme Court.
This decision follows on from similar cases involving Uber, Deliveroo and Citysprint. However, as much as it may look like a pattern is developing with these judgements, all the cases are decided on their own facts - it is not the case that Tribunals are extending workers rights and protections to the genuinely self employed. Where businesses may well run into difficulties is where they attempt to maintain a relationship of self employed contractor with a particular individual, but where they want the customers of the business to believe that that individual is actually a fully integrated employee.
Meanwhile, the Uber case rumbles on with a Notice of Appeal against the decision of the Employment Tribunal having been lodged with the Employment Appeal Tribunal. Last year an Employment Judge (EJ) had found that any driver with the Uber app switched on while in a territory in which he or she was authorised to work and was willing and able to accept assignments was working for Uber under a "worker" contract.
The grounds of appeal include assertions that the judge took into account, when assessing the status of the drivers, a number of matters which were required of Uber by the Private Hire Vehicles (London) (Operators Licences) Regulations 2000. These included the requirement for Uber to interview and recruit drivers, for drivers to present their documentation personally and the fact that Uber fixed the fares and controlled key information about customers. Uber also maintain that the Employment Tribunal erred by disregarding the terms of written contracts between Uber and the drivers.
The Uber case is starting to look like another one that may run the whole way to the Supreme Court.
The Department for Business, Energy and Industrial Strategy finally published its predecessor's (the Department for Business, Innovation and Skills) Employment Status Review. The review acknowledges the difficulty that is often faced in correctly identifying employment status. It is split into 3 parts looking at the current system; some of the most common atypical working arrangements (such as zero hours contracts and agency workers); and then sets out a range of options to change or improve the current system. However, while it highlights the potential difficulties in making changes and the fact that any new system could create new issues, it does not go as far as making any recommendations. It is to be hoped that the Taylor Review, which is also considering modern working practices and was launched in November 2016, will do so.
Finally, ACAS have updated their employment status guidance. This is relatively short and easily digestible guidance albeit where employers have identified potential issues we would recommend specific legal advice is sought.