The claimant worked for the respondent’s private hire car firm as a driver.  On commencing work with the respondent, there was an agreement that he would have rent free use of the electric car for the first six weeks and then thereafter, if it is collected from the depot at the start of the shift and returned at the end.  The claimant had the freedom to choose his hours as they were not determined by the respondent. The only expectation was that he would ‘work a reasonable number of hours each week’.  However, when he did take on work, he was not able to substitute with another driver for his allocated work when he was on the app.   The respondent had three classes of work but the claimant had no choice over the class of work that he would be taking.

A new operations manager was appointed by the respondent who sought to curtail the free car rent that had been in place by reducing rent-free start from six weeks to two weeks.  The claimant sought assurances that the rent free work would continue insofar as he collected the car and returned it as per his agreement before commencing the work.   The claimant was told that the rent free scheme was changing to one that was upon the amount of work done and the ‘points’ accrued within the respondent’s working system.  The claimant stated, in a conversation with the new operations manager, that he had rights as a worker and that it would be a breach of contract to remove the rent free driving option.  He was advised to return the car and that if he changed his mind about the new points system then he would be welcomed back as he was deemed a good driver.

The claimant brought actions based upon detriments arising from protected disclosures, lack of holiday and notice pay, unfair dismissal and less favourable treatment under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.  The issue dealt with in the index judgment was the classification of the claimant.  Whilst the claimant argued at the EAT that he should be afforded employee status, it was held that he should be classified as a worker.  This upheld the decision of the ET.

At first instance, the ET held that despite being a worker the claimant could not avail of the rights under the Part-Time Workers Regulations 2000 on the basis that Regulation 2(2) states that they must be paid ‘at least partly by reference to time worked’.   The ET had found that he was doing piecemeal work.  The EAT found that the ET had erred in law holding that the level of commission that the claimant received strongly correlated with the amount of hours worked. The EAT found that this was clear especially in light of the framework agreement which had stipulated that the reasonable hours that the claimant would have to take on would be less than full-time hours. The EAT remitted the case back to the ET with the substituted finding that the claimant could avail of the protection under the 2000 Regulations.  It will then be for the ET to determine whether there was less favourable treatment as a result of being a part-time worker.

Practical Lessons

The issue of employment status has once again come to trouble the Tribunals again.   The myriad of working relationships that have arisen, especially in the so-called ‘gig economy’ and the use of mobile apps means that the Tribunals need to find some flexibility in the law.  In this case, it was seen that there was no employment status but there was worker status on the basis of the degree of control and the lack of substitution.  A bigger point that could be found is how that then translates to protection under the Part-Time Worker Regulations and it was held that the claimant could avail of this.  This shows a further head of argument that may arise when there are issues with workers in the gig economy.
https://www.gov.uk/employment-appeal-tribunal-decisions/mr-warren-augustine-v-econnect-cars-ltd-ukeat-0231-18-oo