If the beast from the east struck again
Stephanie Bowen | 08.03.2019
10.03.2017 Katherine Maxwell
Determining ‘worker’ status has been a major focus in the world of employment law recently, with several high-profile cases considering the issue. Aslam, Farrar and Others v Uber contemplated whether Uber’s taxi drivers were workers or self-employed contractors, while the employment status of CitySprint’s couriers was deliberated in Dewhurst v CitySprint UK Ltd. The issue of worker status has been much contested in the courts due to the potential financial ramifications for employers. If a person is deemed to be a ‘worker’ as opposed to a ‘self-employed contractor’, they will be entitled to a number of employment related rights. Such rights include the National Minimum Wage and holiday pay. Self-employed contractors are not entitled to those rights and so evidently it is better financially for a company’s workforce not to be comprised of ‘workers’. The case of Pimlico Plumbers & Anor v Smith  EWCA Civ 51 is another recent example of a company contesting that its workforce should be classified as self-employed to avoid such financial ramifications.
Gary Smith (‘the Respondent’) had been working for Pimlico Plumbers Limited, a company owned by Charlie Mullins (together “the Appellants’) as a plumber since August 2005. In May 2011, the Respondent was dismissed by Pimlico Plumbers Limited following a heart attack he had sustained earlier that year. Mr Smith brought various claims including unfair and wrongful dismissal.
At the employment tribunal, it was decided that Mr Smith was not an employee and therefore could not bring claims for unfair and wrongful dismissal. The tribunal did however rule that the Respondent could be classified as a ‘worker’ and consequently it was possible for it to hear his claims for direct disability discrimination and holiday pay.
At the EAT, the Appellants appealed against the decision that Mr Smith was a worker while Mr Smith cross-appealed against the decision that he was not an employee. Both appeals were dismissed.
Mr. Smith did not appeal again, but the Appellants decided to appeal to the Court of Appeal (‘the COA’). The COA stated that the employment tribunal had been correct to conclude that Mr. Smith was a worker and not self-employed. Various factors influenced the COA’s decision. For a person to be deemed a ‘worker’ they must be contracted to ‘personally’ perform work for their employer. Particularly relevant therefore was the fact that, though the Respondent might have been able to swap jobs with other plumbers working for Pimlico Plumbers Limited, he had no true right to have someone perform work in his place. The COA also felt that the degree of control exercised by the Appellants over the Respondent was inconsistent with the relationship between a self-employed contractor and his ‘client’.
Lord Justice Underhill recognising (correctly!) that employment lawyers would be interested in this case, warned against ‘drawing any general conclusions from it’. Paragraph 84 of Sir Terence Etherton’s judgement does however provide some useful guidance on fulfilling the personal performance requirement for worker status. In addition, the judgement was critical of Mr Smith’s contract which, though clearly drafted by lawyers, was ‘not fully thought through’. This case therefore goes to show the importance of having contracts drafted correctly by conscientious employment lawyers such as those in our employment team.
If you have any queries regarding any of your contracts or the employment status of your workforce, please do not hesitate to contact us.