We have reported on the Uber and Pimlico Plumbers cases around worker status and the gig economy throughout the last 12 months. A Supreme Court ruling this month considered the Pimlico Plumbers v Smith ruling and whether the tribunal was entitled to conclude that Mr Smith was a ‘worker’ under the Employment Rights Act.
A worker or an employee?
Mr Smith issued several claims in the tribunal in 2011. An employment tribunal found that Mr Smith was not an employee but was a 'worker' and 'in employment' within the meaning of the Equality Act. This finding was upheld by the EAT and the Court of Appeal.
For Mr Smith to qualify as a worker, the Supreme Court had to agree that he had undertaken to personally perform work for Pimlico Plumbers and that the company was neither his client nor his customer.
What’s in the contract?
The dominant feature of Mr Smith's contract was that he should perform the work himself; he did not have a free right to give away the work.
Although Mr Smith had the ability to swap a shift with another Pimlico Plumber, this was a qualified right not set out in his written contract.
Mr Smith was able to reject work and bore some financial risk, but this did not outweigh the factors pointing against Pimlico Plumbers being a client.
Subordination indicates he is not a client
The company controlled Mr Smith's uniform and his administrative duties, as well as when and how much payment he received. This relationship of subordination was a key indicator that Pimlico Plumbers was not a client of Mr Smith.
Accordingly, the employment tribunal was entitled to conclude that Mr Smith was a 'worker'.
Supreme Court ruling this month
Paul Burton, Head of Frettens' Employment Team, comments “The Supreme Court judgment adds very little to the existing caselaw on the meaning of 'worker'. The court focused on whether the tribunal was entitled – based upon the facts - to find that Mr Smith was a worker.”
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Paul or Kate will be happy to discuss it with you.