Mr Smith had worked for Pimlico for about 6 years during which time he was described in the contractual documentation as an independent contractor in business on his own account. He was under no obligation to accept work from Pimlico nor was Pimlico obliged to offer him work. He had to provide his own materials and tools and he bore a significant proportion of the commercial risk. However, he was also required to complete a minimum of 40 hours of work a week, was subject to restrictive covenants, had to drive a Pimlico branded van and wear a Pimlico uniform. There was a limited ability to provide a substitute.
The Employment Tribunal had held that Mr Smith was a "worker" for the purposes of the Employment Rights Act and the Working Time Regulations, and "in employment" for the purposes of the Equality Act. The Employment Judge found that the contractual documentation required Mr Smith to provide work personally to Pimlico and that he was not, in fact, in business on his own account. Pimlico was not a client or customer of Mr Smith. The EAT and Court of Appeal upheld this decision, dismissing Pimlico's appeals.
Before the Supreme Court, Pimlico argued that the Employment Tribunal's reasoning was inadequate to support the decisions they reached and asked for the Court to set them aside and direct the Tribunal to reconsider the issues. The Supreme Court therefore looked at the factors considered by the Employment Tribunal - whether there was personal service and whether Pimlico could be regarded as a client or customer of Mr Smith - and found that the Tribunal was entitled to conclude that Mr Smith was a "worker". Although there was a right of substitution it was limited to swapping in others already working for Pimlico and, as such, was not inconsistent with an obligation to perform work personally. When it came to the question of whether Pimlico was, in reality, a client of Mr Smith the Employment Judge had been entitled to give greater weight to the factors that undermined that contention including the branding on his uniform and vehicle, the restrictive covenants and the control the company had over when and how Mr Smith was paid.
So what does this mean for employment status cases going forward? The Supreme Court judgement probably doesn't add a great deal to what had gone before (although the Court of Appeal judgement does provide a useful summary of relevant principles when determining personal service). This type of case will always turn on the particular facts and circumstances involved - hence why assessing employment status can be so difficult. For Mr Smith it means that, some 7 years after he brought his claim to the Tribunal, the preliminary issues have been sorted out and his substantive claims can finally be progressed!