The claimant worked as a cycle courier and argued that when he worked for the respondent he was a worker pursuant to the Employment Rights Act 1996 (the GB equivalent of the Employment Rights (NI) Order 2016). When he began working for the respondent in September 2013 the claimant signed a contract describing himself as a ‘contractor’ and in a later contract as a ‘subcontractor’, although the tribunal was quick to point out that neither of these terms accurately reflected the true nature of the relationship.

It was not in dispute that the claimant provided his own bicycle, mobile phone and protective clothing. There was also an expectation that the claimant would keep the respondent informed when he required time off. While the claimant’s contract stated that he would retained on a ‘when needed basis’ the respondent’s website was clear that it employed its own dedicated team of couriers.

The tribunal looked at several other factors, including that the claimant was under the direction of another, the consistency of the time worked and also that the ability of the claimant to substitute work was very much restricted. The tribunal held that after considering the various factors relevant to employment status, the claimant was a ‘worker’ and not an independent contractor. He was therefore entitled to be paid for a week's holiday which he had taken but for which he had not received holiday pay.

Practical Lessons

The tribunal recognised that the claimant provided all his own ‘tools of the trade’ but focused more on the fact that at no point did he enter into contracts for his own business with clients, or even one client. This is yet another example of tribunals looking beyond the wording of a contract to find the ‘reality’ of the working relationship and is particularly topical with the emergence of the ‘gig-economy’.

Yet this decision should not be limited only to those operating in the ‘gig economy’ and indeed many businesses will employ contractors and have staff on flexible working arrangements. It is interesting that the tribunal cited the case of Pimlico Plumbers v Smith [2017] EWCA Civ 51 to support the proposition that in some circumstances an individual may maintain the ability to substitute work and maintain personal performance. This will depend on the precise wording of the contractual arrangements but employers should note that permitting an individual to substitute their work to another will not conclusively negate employee/worker status.

https://assets.publishing.service.gov.uk/media/58ecacb5ed915d06ac000150/Mr_A_Boxer_v_Excel_Group_Services_Ltd__in_liquidation__3200365-2016_Final_and_Reasons.pdf