Our next case is the gig economy/employment status case of Pimlico Plumbers. This case has been through the ET, EAT and Court of Appeal, our take on the CoA judgment late last year included a table that set out what factors are indicative of a person’s employment status. Anyone who is unfamiliar with employment status should look at that table.
In summary, the facts are as follows:
Mr Smith, the Claimant, was a heating engineer for Pimlico Plumbers, the Respondent. He had a self-employed contractor agreement with the Respondent and provided his own tools, was able to switch jobs and paid his own tax and NI – the Respondent paid none as is normal for true self-employment relationships. Throughout his time at the Respondent, the Claimant believed that he was self-employed.
However, despite being self-employed on-paper, the Claimant’s actual employment relationship suggested he was not self-employed. He was required to wear the Respondent’s uniform and drive a branded van. He was not allowed to engage in private work or sub-contract it out to a replacement.
He had a GPS tracker in his van to monitor movements and had to log all work done via the Respondent’s system. He had to work a 40 hour week, take on-call work and needed permission to take time off. He was also subject to the Respondent’s grievance and disciplinary procedures.
The Claimant had a heart attack and wished to reduce his hours. The Claimant had his contract terminated after a period of absence and after requesting to reduce his hours.
The Claimant imitated ET proceedings for disability discrimination and the ET, EAT and CoA all held he was a worker and thus able to bring a discrimination claim. The overriding theme was that despite having a self-employment agreement, the nature of the working relationship meant the Claimant was, in fact, a worker.
This judgment was reached largely due to there being a mutuality of obligations whereby the employer was obliged to give and pay for work done and the employee obliged to perform the work personally. The Claimant could not send a replacement and had to do the work in accordance with the Respondent’s procedures.
The Respondent appealed to the Supreme Court and they dismissed the appeal, agreeing with the CoA, EAT and ET.
The takeaway point:
It was hoped that the Supreme Court would clear up the gig economy/employment status debate by laying down clear guidelines on areas of ambiguity in particular substitution and mutuality of obligations. However, perhaps somewhat unsurprisingly, the Supreme Court has taken the easy option to simply uphold the junior courts’ decision without progressing or clarifying the ambiguous areas.
Judges seldom like making findings they don’t need to, but what this case does show is that judges will decide employment status on the facts, not what is written down on the contract. If the facts say worker but the written contract says self-employed, the written contract will be overridden by the facts of how the contract is performed. Therefore, the table from our previous case still applies as a form of decision-making matrix.
This case will have some significance on other gig economy cases but the law remains the same; judges make decisions based on a case by case basis looking at the facts of how the contract is performed rather than just looking at the written contract. This is very uncertain and has not cleared up the situation like we had hoped at the start of the year. Given the government is in near-stasis on following up the Taylor Report, a strong judgment here would have been very helpful.
Charlie Mullins, the Rod Stewart lookalike founder of Pimlico Plumbers, has mentioned appealing the decision to the European Court of Justice. However, that is most likely going to be ineffective. What is needed is Government action to clear up an important and untidy area of employment law.