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29th August 2017

Employment Status: worker or self-employed?

Overview

Following the recent cases of Uber and Deliveroo, it is no wonder that Organisations often find themselves in a quandary about an individual’s working status. Over the last few months, we have seen a variety of challenges in the Tribunal against employee and worker statuses, against what an Organisation has perceived to be self-employed arrangements with a third party. With this in mind, it will come as no surprise that Organisations have once again been propelled into the spotlight regarding employment status in the recent case of Gascoigne v Addison Lee Ltd [2017] UKET 2200436/2016.

The Facts

In the case of Gascoigne v Addison Lee Ltd, Mr Gascoigne was employed as a cycle courier from 2008 until 2017. He held a contract with the Company which defined his role as a self-employed contractor, who would act on behalf of Addison Lee as a subcontractor to make deliveries to its customers.

The contract dictated that Mr Gascoigne could choose the days and times he could work and there was no obligation on the Company to offer him work. There was, however, a provision that held where Mr Gascoigne was logged onto his palmtop computer or app that he would be available for work. It should also be noted that there was no “decline” button on the app.

Equally, although Mr Gascoigne would often pre-book his holiday there were formal processes that he was bound by, in the event he failed to do so. The work he would have undertaken would instead be allocated to other couriers who were available. Mr Gascoigne was paid a fixed rate for the works carried out, but had sums deducted on a weekly basis due to alleged insurance and "admin fees". The question was whether Mr Gascoigne was a worker and thereby entitled to holiday pay.

Judgment

Based on the evidence available, the Employment Tribunal held that Mr Gascoigne was a worker and that his holiday pay claim was justified. As has been the case previously, the Tribunal looked behind the contract to establish the true working relationships of the parties and held:

  1. There was a mutuality of obligation between the parties
  2. Mr Gascoigne had worked almost continuously for the Company if he was logged onto the app. The fact that he could turn down a job on occasions did not overrule the principles of a worker-type contract
  3. Once he accepted the job he was subject to a wage/work bargain
  4. Mr Gascoigne did not understand, nor was he aware of the terms and conditions he was required to work under
  5. The Company set the rates of pay; and
  6. The combined invoice, in the Tribunal’s view was more akin to a payslip

As a result, although Mr Gascoigne was described as self-employed and he paid his own tax and NI, the Tribunal concluded that the true working relationship was not incompatible with worker status.

Key Points

Employers will, therefore, question what steps can they take to reduce the likelihood of this situation and we would recommend the following top tips:

  1. What type of contract do you have in place? Whilst the contract will not be viewed as gospel by a Tribunal, as they will often look behind the wording to depict the true working relationship, it often helps as useful starting point to establish the boundaries of the working relationship;
  2. Is there a mutuality of obligation between the parties? For example, do you have to provide an individual with work and do they have to accept this; and
  3. Does the individual have autonomy over their role? For example, do they chose their own working hours and how to carry out the work, attend internal meetings, carry out a set working pattern, wear a uniform and are they subject to internal processes and procedures.

Your response to these answers could help determine the difference between an employee, worker or self-employed contractor. If you have any questions regarding the above, or are concerned about an individual’s working status, please do not hesitate to contact a member of the team at Napthens who will be more than happy to help.

*All information is correct at the time of publishing

Julie Duane

Napthens LLP – Employment Law Advocate

Julie is one of our Employment Law Specialists from Napthens Solicitors. Read more

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