Is an employment tribunal entitled to use a "realistic and worldly wise" approach to determining employment status? Yes, held the EAT in Addison Lee v Lange & ors.
Obligation to work
The Claimants were all private hire drivers, who entered into an agreement to hire liveried cars from a company associated with Addison Lee. There was, as part of the agreement, a portable computer known as an XDA which each driver had to log into. Once they did, work was allocated automatically to them via the XDA and they had to provide reasons if a job was refused. If they did not, there were sanctions in place.
The contractual documents described each Claimant as an independent contractor. Addison Lee appealed the tribunal's findings that each was a worker, arguing that the tribunal had wrongly dis-applied parts of the agreement in finding there was an obligation to do some work. In rejecting that argument, the EAT said:
"We consider that the tribunal, applying the 'realistic and worldly wise' approach mandated by Autoclenz, was entitled to reach the conclusion it did."
A separate ground of appeal relating to working time was rejected. That confirmed that each Claimant was 'working' when logged in to the XDA.
Kate Fretten, Partner of Employment Team comments “this is another case in a growing line of decisions that confirm people working in the gig economy are more than likely workers rather than self-employed contractors. Employers taking on what they think are self-employed contractors should seek specialist legal advice to confirm they are categorising the person correctly, as getting it wrong is increasingly likely to be costly”.
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 Kate or Paul will be happy to discuss it with you.