When distinguishing between employees, workers and self-employed contractors, bargaining positions can provide a useful litmus test. That was certainly so in a further case on this topic in which an Employment Tribunal (ET) found that a bicycle courier was a worker, within the meaning of the Working Time Regulations 1998, notwithstanding that his contract specifically stated that he was not (Gascoigne v Addison Lee Limited).
Mr Gascoigne worked for Addison Lee Limited, which provides a variety of transport services and has thousands of operatives. His contract stated that he was an independent contractor and that nothing in the agreement should render him an employee, worker, agent or partner of the company. He was forbidden to hold himself out as such and the contract required him to indemnify the company against costs arising from any employment-related claim.
In finding that he was nevertheless a worker – and thus entitled to holiday pay and other benefits – the ET noted that Mr Gascoigne had no choice as to the terms of the contract, which he knew he had to sign in order to carry on working for the company. It was probable that he did not read the contract, the terms of which were inconsistent with the wording of the company’s website which, amongst other things, referred to its operatives as ‘our team’.
Although Mr Gascoigne was paid a piece rate for each completed delivery and provided his own push bike, he was required to carry a company ID when working and to wear a T-shirt and carry a bag bearing the company’s logo. Working under the direction of a controller, he was not running his own business and performed his work personally and not because the company was his client or customer. In the circumstances, his claim in respect of two weeks’ holiday pay was upheld.
The recent Taylor Review of Modern Employment Practices recommended that the status of worker – i.e. those who are eligible for worker rights but who are not employees – should be retained but renamed ‘dependent contractor’, with a clearer distinction drawn between the rights of employees, dependent contractors and those who are legitimately self-employed.
The report also recommended that for employment rights claims that are dependent on an individual’s employment status, claimants should be able to obtain an authoritative determination of their status at an expedited preliminary ET hearing, without having to pay a fee. However, the Supreme Court has since ruled that ET fees are illegal, which could result in an increase in claims of this type.
Employers with personnel working under contracts similar to the one in this case are advised to review their employment status and consider whether the arrangements comply with National Minimum Wage legislation and the rules on workers’ holiday leave and pay. Contact Damian on 020 82636080 for assistance with this exercise.