The Supreme Court is about to hear a case – the result of which is likely to greatly affect gig economy worker’s rights. The hearing will take place before Lady Hale, Lord Wilson, Lord Hughes, Lord Lloyd-Jones and Lady Black.
The case concerns plumber Gary Smith who, between 2005 and 2011, worked exclusively for Pimlico Plumbers on a self-employed contract working a five-day week of at least 40 hours, wearing the company uniform and hiring its branded van. He provided his own equipment, accepted personal liability for his work and was covered by his own insurance.
The decision will be made by the Supreme Court as to whether he is an independent contractor or whether he has the rights of a worker - such as receipt of holiday pay, minimum wage, etc.
It could be a landmark case for gig economy workers’ rights with the decision affecting about 15% of the working population and also could have implications for other employment status cases currently in the English courts. This includes appeals involving Uber drivers’ - amongst others - attempting to obtain workers’ rights through union recognition.
Gary Smith took Pimlico Plumbers to an Employment Tribunal in 2011, claiming that he was wrongfully dismissed: discrimination arising from disability and failure to make reasonable adjustments. He had suffered a heart attack in 2010 and had requested a reduction in his working week to three days. This was refused and his hired branded van was taken from him, resulting in him bringing the action for unfair dismissal.
A pre-hearing review took place to address whether Mr Smith was an employee or a worker. At the tribunal hearing, it was decided that he was a worker under section 83(2) of the Equality Act 2010, and he was, therefore, a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996.
Pimlico Plumbers and its CEO, Charlie Mullins, appealed against the decision to the Employment Appeal Tribunal (EAT) and the Court of Appeal. In February 2017, the Court of Appeal upheld that Mr Smith was a worker, which then entitled him to bring legal action against Pimlico Plumbers, but it did not find him to be an employee.
Purvis Ghani - Employment Partner at Stephenson Harwood, stated:
“The case is a timely reminder of the significance of employment status for many businesses in the UK. If the Court of Appeal's decision is overturned, this could have significant ramifications for the wider economy, including many businesses that use independent contractors that operate outside of the gig economy. It would be surprising if the Supreme Court took a different view – although it could provide further guidance that might help businesses to navigate this tricky area in future.”
Blair Adams - Partner at law firm Wedlake Bell, said:
“This could be a very important decision on the question of self-employment vs worker status, affecting both technology-based ‘gig’ economy businesses and more traditional companies.”
He added:
“False self-employment continues to be attacked by the courts on a number of fronts, as shown by the recent tax tribunal decision on the use of a PSC by a BBC presenter.”
Former BBC presenter Christa Ackroyd was found by HMRC to be an employee - not a contractor - and was ordered to pay a tax bill of more than £400K.
Harry Abrams - Solicitor at Seddons, stated that a Supreme Court confirmation of worker status in the Pimlico case may result in such companies having to pay unpaid holiday going back indefinitely.
Jason Moyer-Lee, General Secretary of the Independent Workers Union of Great Britain, said that the rise of the gig economy means the issue of employment status is more important than ever.
He stated:
“So far tribunals’ and courts’ interpretations of these issues have done quite well to keep up with the times — that’s why nearly all high profile ‘gig economy’ cases have declared the individual to be a worker, and consequently entitled to minimum wage rights and holiday pay.”
The hearing will take place over two days and the judgment is expected in March.
