The key issue in this case was whether the drivers undertook to do or perform any work or services for the respondent. The case highlights the willingness of courts and tribunals to look behind labels and contractual provisions to the reality of the working arrangements between the parties. The EAT had to consider whether the written employment contract reflected the true nature of the relationship (ref Autoclenz Ltd v Belcher [2011] ICR 1157).

The claimants were private hire drivers for the respondent company. They brought claims for holiday pay and the national minimum wage. Such an entitlement would only exist if they were workers for the purposes of the Working Time Regulations 1998 and the National Minimum Wage Act 1998. The tribunal accepted their case that they were "limb (b) workers" for the purposes of the definitions outlined in the above legislation. The tribunal also held that when drivers were logged into the respondent's system, other than break times, this was working time. The respondent sought to appeal the decisions.

Every driver was given a hand-held computer known as an XDA. When drivers logged into the system, work was allocated to them according to their location. When in receipt of a job, drivers were expected to accept and had to give valid reasons for refusal otherwise they would be subject to a penalty.

“When a job was notified to the driver s/he had to accept it forthwith. If they did not do so they had to give an acceptable reason. If the Controller deemed the reason to be unacceptable, the matter was then referred to a supervisor … Refusing a job in this way was known as "unallocation". A sanction might follow."

Drivers could push a button on the XDA to notify the respondent when they were on a break and drivers were permitted to log off whenever they wanted provided they were not on a job. The respondent did not guarantee drivers a specified number of hours per week but advised them that the average would be approximately 50-60 hours per week, and that 25-30 hours per week would be needed in order to recover costs for the hire of the vehicle. In terms of documentation, drivers signed a Vehicle Hire Agreement and a Driver Contract. The Driver Contract provided that drivers were independent contractors as they could choose their own hours of work and stated there was no obligation on either side to provide or, in fact, do the work stipulated.

The tribunal concluded the drivers were workers for the purposes of s.230 (3) (b) ERA 1996. It held there was an overarching agreement between the parties with regards the mutuality of obligation, i.e., to offer and perform work. The EAT upheld the decision of the tribunal. It concluded that the Driver Contract did not entirely reflect the true agreement between the parties, stating "the contractual provisions, when analysed objectively, do not properly reflect the true agreement between the parties".

The EAT agreed with the initial finding that a driver had to accept a job allocated in the absence of an acceptable reason, and that if a driver did not do so, a sanction could be imposed.

“Applying Autoclenz principles the tribunal was in our judgment entitled to reach the conclusion, expressed in its reasons, that the drivers, when they logged on, were undertaking to accept the driving jobs allocated to them.”

The EAT also upheld the tribunal’s finding in relation to working time stating that when drivers were logged on, this amounted to working time.
https://www.bailii.org/uk/cases/UKEAT/2018/0037_18_1411.html