It’s worth noting that in all these recent cases brought against the likes of Uber, Pimlico Plumbers and Addison Lee, the claimants have sought to argue that they are ‘workers’, rather than fully-fledged employees. This means that whilst they will enjoy some basic legal rights, they cannot claim unfair dismissal.
Where does this leave these casual workers? The recent case of Hafal Ltd v Lane-Angell considered the point.
Miss Lane-Angell worked for Hafal Ltd from March 2013 until January 2016. She did not have a ‘traditional’ employment contract; instead she worked under a ‘bank’ arrangement. This meant that she needed to tell Hafal when she was free to work. Once she had done so, she was expected to accept any shifts offered to her. However, she did not receive any guaranteed hours and Hafal was under no obligation to offer her work if none was available.
A little less than the year before Miss L-A left Hafal, it introduced a requirement for ‘bank’ workers to be available for at least 10 shifts per month, together with a requirement to respond to callouts. On the back of an allegation that Miss L-A had failed to hold up her end of the bargain, Hafal decided that she would be offered no further work. She brought a claim for unfair dismissal.
In order for her unfair dismissal claim to succeed, Miss L-A needed to be able to show that she had been an employee of Hafal for at least 2 years before her alleged dismissal. Whilst her argument was successful before an Employment Tribunal, Hafal successfully appealed to the Employment Appeal Tribunal. The EAT acknowledged the Employment Tribunal’s right to look at both the written agreement between Hafal and Miss L-A and the surrounding circumstances. However, given that the written agreement clearly stated that Miss L-A was under no obligation to offer herself up for work, this was fatal to her unfair dismissal claim.
Admittedly, the position might have been different had the requirement to be available for at least 10 shifts per month been in place throughout her engagement with the company. However, this requirement was only introduced roughly 9 months before she left.
The written contract still matters
Some of the recent cases on worker status may have left you with the impression that it’s pointless trying to establish a genuine ‘self-employed contractor’ arrangement through a carefully written contract; the Courts and Tribunals often seem to look straight past it. Admittedly, it is true to say that our judges can look through the written contract, so as to identify the true nature of the contractual relationship. However, the written contract will still be important and persuasive evidence of the nature of the deal struck between the parties. This is particularly the case if:
· the written terms are clear; and
· the document indicates its intention to establish the ‘entire agreement’ between the company and the individual.
If you need help in reviewing and revising your own contracts with employees, workers or independent contractors, please get in touch.