No doubt, we have all read with interest about the decisions in the Uber, CitySprint and Pimlico Plumbers cases. They appear to have given claimants the upper hand when it comes to arguments over whether ‘gig economy workers’ should be given ‘worker’ status for employment law purposes. As if to compound problems for the Ubers of this world, we have now seen yet another successful claim; this time from claimants working for transport company, Addison Lee.
The Employment Appeal Tribunal upheld the tribunal’s decision that Mr Gascoigne, a cycle courier, is a ‘worker’ for the purposes of the Working Time Regulations 1998. Whenever he is logged on to the Addison Lee ‘app’, he is obliged to accept any work allocated to him. This, in turn, creates the necessary ‘mutuality of obligation’ required to establish a ‘worker’ relationship.
Not all one-way traffic?
It continues to feel like all these cases have gone in favour of the claimant. However, it’s worth noting that the recent Deliveroo case is one which went the other way. On that occasion, what appeared decisive was the fact that the takeaway delivery drivers were entitled to send someone else to do their work in their place. This ability to send a ‘substitute’ meant that the delivery drivers didn’t have to provide their own ‘personal service’. As a result, they couldn’t properly be categorised as ‘workers’.
If the Deliveroo decision is right (N.B the IWGB union is currently seeking a judicial review!), it would appear to suggest that businesses simply need to include a contractual right of substitution in their paperwork and ‘voila’, no ‘worker’ status! However, for at least 2 good reasons, it’s not quite as easy as this. Firstly, the contractual right to send a substitute must be real and demonstrable, not just an attempt to circumvent employment laws. Secondly, most business don’t want just anyone providing services to them or their customers. Why Deliveroo think it’s okay that they don’t have a clue who is actually delivering food on their behalf is a little difficult to fathom.
In any event, these situations throw up complicated case-specific issues. If you are considering the employment status of anyone working for your business, you really ought to take specific legal advice. Please get in touch if you need our help.