When is a worker a worker and when are they self-employed? It’s a question that has been often asked recently and now a Supreme Court ruling has shed some further light on this much disputed area of the law.
The Supreme Court decided that Gary Smith, who worked solely for Pimlico Plumbers for six years, was indeed a worker as had the employment tribunal, the Employment Appeal Tribunal and the Court of Appeal before it.
He was thus entitled to workers’ rights, like the national minimum wage, holiday and sick pay, after fulfilling the two key tests of employment status including whether he could send a substitute to carry out work on his behalf.
This Supreme Court’s decision means that Mr Smith’s claims for disability discrimination, holiday pay and unlawful deductions from wages, issued almost seven years ago, will now be sent back to the employment tribunal for it to decide.
Though some seem sure the decision is likely to set a significant legal precedent, others maintain the issue of employment status in the so-called gig economy remains unresolved with the Government consulting on the issue and possibly considering legislation.
But undoubtedly, Mr Smith’s case will be of huge interest to many people in similar disputes. In the UK, there’s now an estimated five million people employed in the gig economy, including couriers and ride-hailing drivers, and a number of legal battles currently making their way through the courts.
Before suffering a heart attack, Gary Smith had worked solely for Pimlico Plumbers, carried an identity card and driven one of its branded vans during his working hours but he was registered for VAT and paid tax as a self-employed contractor.
After his illness, he wanted to cut his working hours from five days to three days a week but Pimlico Plumbers, insisting he was self-employed, refused and took away his branded van. Mr Smith said this amounted to dismissal.
The Equality and Human Rights Commission funded Mr Smith’s case from 2015.
Speaking after the Supreme Court ruling, its chief executive, Rebecca Hilsenrath, said: “If you wear the uniform, if you drive the branded vehicle, if you only work for one business, you are employed.
“That means you are entitled to the appropriate protections and adjustments which go with the job, to enable you to work safely and productively. Thousands of workers like Gary Smith could now find themselves with the added security of benefits like sick pay and holiday pay.”
The founder of Pimlico Plumbers, Charlie Mullins, has vowed to carry on fighting and says he is considering taking an appeal against the decision to the European Court of Human Rights in Strasbourg.
See what else we’ve written on this subject:
The number of cases now 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 Solicitor.