The claimant, Mr Gascoigne, was a cycle courier with the respondent company. In August 2017 an employment tribunal upheld his claim that he was a 'limb (b) worker' within the meaning of Regulation 2 of the Working Time Regulations and therefore entitled to holiday pay. The tribunal held the written terms of the contract between the parties, describing Mr Gascoigne as an 'independent contractor', did not reflect the reality of the relationship; and that, during the period when he was 'logged on' to the respondent's app, there was a contract with mutual obligations for 'jobs' to be offered and accepted.

“This was a working arrangement which did not lend itself to the interpretation which the armies of lawyers tried to promote. The claimant was part of a homogenous fleet and a homogenous operation which promoted Addison Lee to customers and looked after its own. There is nothing wrong or bad about that, it simply does not fit with the employment status for which the respondent contends."

The respondent appealed the decision arguing there was no basis to conclude that Mr Gascoigne was under any legal obligation to work. It stated the decision on whether or not to do so was a matter for his whim and fancy and consequently the claim should fail owing to a lack of mutuality of obligation. The respondent also argued the 'multi-factorial assessment' that Mr Gascoigne had the status of a 'limb (b) worker' was vitiated by factual error and should be remitted to another tribunal.

Applying the dicta of Mummery LJ in Fuller v London Borough of Brent [2011] ICR 806 the EAT rejected both grounds of appeal: "The tribunal judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of a tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid."

The EAT held there was no challenge to the tribunal's conclusion:

“In our judgment the tribunal reached an unimpeachable conclusion that there was a contract during the log-on periods with the requisite mutual obligations... there was ample evidence for the tribunal's conclusion, which reflected its correct focus on the reality of the situation.”
www.bailii.org/uk/cases/UKEAT/2018/0289_17_1105.html