On Friday, the Employment Appeal Tribunal (EAT) rejected an appeal by car and courier service Addison Lee, in their attempt to challenge an earlier judgement which ruled over the employment status of one of their workers.
Addison Lee operate a provision of private hire taxis with around 4000 drivers, a small courier business with around 500 drivers using motorcycles, cars, vans and a smaller fleet of around 30-40 push bike couriers. The company provides all of its workers with a hand-held computer on which an app allows them to log on and accept jobs offered to them.
In August 2017, the London Central Employment Tribunal ruled in favour of Christopher Gascoigne, who worked for Addison Lee as a cycle courier, holding that he was employed as a worker, not an independent contractor as the company had suggested. This in turn allowed Mr Gascoigne, as employee worker, to claim certain employment rights such as holiday pay, the right not to be discriminated against and the entitlement to be paid the national minimum wage.
The legal test which the tribunal relied upon to determine the definition of Mr Gascoigne as a ‘worker’ is: whether the individual worked either (a) under a contract of employment or (b) any other contract (whether express or implied) under which they undertake to do or perform personally any work or services for another party. Relevant factors in the decision seemed to include whether the individual is provided with equipment essential to complete the job, the degree of control the employer exercises over the individual and whether the individual is subject to a classic work/wage bargain.
Addison Lee appealed against the ruling on two grounds, the first being that Mr Gascoigne was under no legal obligation to work, with him having the right to accept or refuse jobs as he saw fit.
The second ground of appeal argued that the tribunals multi-factorial assessment provided no basis for its conclusion that Mr Gascoigne was a ‘limb (b) worker.’
The EAT upheld the earlier finding that there was a mutuality of obligation between the two parties when Mr Gascoigne was logged into the app. Whilst there was no obligation on him to log onto the app, when he was logged on there was no option for him to refuse jobs offered to him and there was no way he could not complete a job unless circumstances such as a puncture or the package being too heavy to carry, got in the way. Despite the entitlement for Mr Gascoigne to log out of the app at any time, this did not affect his obligation to accept work when logged on nor the EAT’s view of his working status.
The EAT also noted the tribunals earlier point concerning Mr Gascoigne re-signing his contract every three-months, the terms of such contract included: “You agree that you are an independent contractor and that nothing in this agreement shall render you an employee, worker, agent or partner of Addison Lee and you shall not hold yourself out as such.”
Further in its decision the EAT referred to the fact that Mr Gascoigne had claimed he could find himself in a ‘tricky situation’ if he did not accept a job and each week he was issued with a ‘combined invoice statement’ which was akin to a payslip. All of which contributed to the view that the initial tribunal had made a correct judgement in terms of Mr Gascoigne’s employment and upheld the decision that his working pattern did not fit with the status of an independent contractor, as Addison Lee contended.
This case is following the recent line of gig economy cases such as Uber and Pimlico Plumbers illustrating that there is a whole economy out there in which individuals who previously were told (and may have accepted) that they were self-employed contractors, are workers with limited employment rights.
