“I’m a worker not self-employed” – another case upheld

The latest round in the long running and increasingly bitter legal battle between some gig economy employers and those who carry out work for them has once again been decided by the courts.

The Employment Appeal Tribunal (EAT) has upheld a claim by an Addison Lee cycle courier that he was a worker rather than self-employed and therefore entitled to certain employment rights, including holiday pay.

Christopher Gascoigne first took the taxi and courier firm to an employment tribunal last year which agreed that although Addison Lee described him as an 'independent contractor' in his written contract, this did not accurately reflect his role.

No legal obligation to work

Addison Lee appealed the decision claiming Mr Gascoigne was under no legal obligation to work and was free to either accept or decline jobs offered to him when he logged on to the company's system.

But the EAT was having none of it, dismissing the appeal for a number of reasons including the fact that Mr Gascoigne disclosed he could get in a 'tricky situation' for not taking a job and how his location was managed by Addison Lee to enable him to move quickly from delivery to delivery.

"Real shocker"

In a stinging attack on the Government's response despite the growing amount of litigation, Dr Jason Moyer-Lee of the Independent Workers' Union of Great Britain which represented Mr Gascoigne, said: "For anyone who has the vaguest awareness of employment law, the fact that Addison Lee has lost its appeal will come as no surprise.

"The real shocker is that, even though tribunal after tribunal after tribunal has shown that companies in the so-called 'gig economy' are unlawfully depriving their workers of rights, the Government still does nothing but talk."

Ongoing saga

There have been a number of high profile cases over the last two years in which men and women have argued that they are not self-employed contractors but in fact workers or employees and thus entitled to enhanced employment rights including the minimum wage and holiday pay.

On the whole, the companies involved - including Uber, CitySprint and now Addison Lee - have been unsuccessful in defending these claims with one notable exception, Deliveroo, whose drivers were found not to be workers by the Central Arbitration Committee, a Government body, because they could appoint substitutes.

But the tide of litigation shows no sign of slowing:

• Couriers delivering emergency blood supplies recently won full employment rights in an out-of-court settlement with the pathology company, The Doctors Laboratory (TDL);

• The delivery company Hermes is currently contesting a claim at an employment tribunal from a group of couriers who say they are being "denied basic workers' rights by being forced to declare as self-employed";
• The Independent Workers' Union of Great Britain is backing claims by former drivers of three taxi firms - Green Tomato Cars in London, national firm Blacklane and Birmingham's A2B - who say they are workers and not independent contractors;
• The Supreme Court is expected to give a reserved judgement on the case of Gary Smith, who claimed he was sacked by Pimlico Plumbers because he wanted to go part-time after a heart attack, over whether he was a worker or self-employed as his agreement stated. The Court of Appeal had previously upheld the decision that Mr Smith, who worked exclusively for Pimlico Plumbers between 2005 and 2011 was a worker.

Going forward

The number of cases being brought makes it vitally important for firms who think they may be affected to review contracts, holiday pay arrangements and assess the risk of a claim from those who are no longer engaged by the business.

For help and advice about legal employment issues please contact our specialist Employment Law team.