Some high profile cases have been heard this month, and not all of the decisions went the way you might expect.
Following the trend of finding that drivers/couriers etc are workers, the appeal by Uber that was heard in the EAT in September was unsuccessful. A fuller report on that judgement can be found here. A further appeal is expected and this may go straight to the Supreme Court to be heard with the Pimlico Plumbers appeal. However, this may all become something of a moot point if there is truth in the rumour that Uber are planning to buy up to 24,000 self driving cars (see our In the News section for more…).
However, things did not go as expected for the Independent Workers Union of Great Britain when they tried to obtain union recognition for their "workers" via the Central Arbitration Committee ("CAC"). Having already had Deliveroo riders being found to be workers in the employment tribunal, the union may have thought they were on to a winner when their case was heard in May. However, the CAC decided Deliveroo riders were not workers for the purposes of the application for compulsory recognition. The "almost unfettered" right of substitution - irrespective of the fact it was largely unnecessary for riders who could refuse jobs - meant the application failed as the contracts with the riders were not for personal service. Nor did it matter to the CAC that the reason for including the right of substation clause might have been for the purpose of defeating arguments as to worker status.
The ECJ's judgement in King v The Sash Window Workshop Ltd and anor (referred to elsewhere in this bulletin) will come as another blow to businesses at risk of having wrongly classified workers as self employed. The judgment has held that where an employer has prevented a worker from exercising the right to paid leave then that leave will continue to accumulate until either the worker is able to take it or their contract ends. Potentially this means claims for unpaid holidays going back over many years. Ignorance of the employer of the correct employment status will not be an excuse.