Employment Law Speed Read – 21/05/18
21st May, 2018
This week we look at a case where the decision that a courier was not a worker was overturned.
Addison Lee Ltd v Gascoigne (UKEAT/0289/17)
In Addison Lee Ltd v Gascoigne (UKEAT/0289/17), the Employment Appeal Tribunal (EAT) overturned the decision of the Employment Tribunal (ET) that a courier was not a worker for the purposes of the Working Time Regulations and Employment Rights Act.
Mr Gascoigne worked as a cycle courier for Addison Lee from 2008 until 2017. His contract deemed him to be an independent contractor and that he would sub-contract from Addison Lee in relation to deliveries to their customers.
Mr Gascoigne chose the days and times he would be available to work but there was no formal obligation on either party to give or accept work. However, Mr Gascoigne would be deemed available and willing to provide work when logged on to Addison Lee’s mobile platform (provided for the company). When logged on, Mr Gascoigne would be in constant contact with Addison Lee, who could track his whereabouts. There was no “decline” button on the mobile platform, so the expectation was that if Mr Gascoigne was given a job he would do it or contact Addison Lee to state why they could not. Mr Gascoigne was also expected to contact Addison Lee if the package could not be delivered.
The contract contained an indemnity from Mr Gascoigne to Addison Lee in relation to any costs resulting from a claim based on employee or worker status. Mr Gascoigne was paid a piece-rate, determined by Addison Lee, and could not negotiate higher rates. He was also paid a fixed rate for waiting time and had sums deducted weekly in respect of insurance and an “admin fee”.
Mr Gascoigne’s working pattern was very variable. He generally pre-booked holiday although there were no formal consequences of failing to do so as the work would be picked up by others.
The ET decided that Mr Gascoigne was a worker and entitled to holiday pay as a result. The ET determined that the contractual documentation did not reflect the reality of the relationship, as Mr Gascoigne was obliged to perform work personally for Addison Lee and under its control, rather than operating his own business, and as a result was subject to a “classic wage/work bargain”, creating a mutuality of obligations.
Addison Lee appealed this decision on the basis that the ET had erred in its conclusion that Mr Gascoigne had an obligation to perform work and that, even if he had a minimum obligation to do so, the ET’s decision that he was a worker was perverse.
Addison Lee did not challenge the ET’s conclusion that the contract did not reflect the reality of the relationship.
Employment Appeal Tribunal
The EAT dismissed the appeal and confirmed that Mr Gascoigne was a worker for the purposes of the Working Time Regulations 1998.
The EAT held that the ET correctly concluded that there was a contract of employment during the periods when Mr Gascoigne was logged on to the Addison Lee app, and that during these periods the requisite mutual obligations applied. The fact that Mr Gascoigne was entitled to log off at any time was not at odds with his obligation to accept the work offered when he was logged on.
The absence of evidence of an express sanction for refusal of an offer of the type found in Uber BV v Aslam (where drivers had to accept at least 80% of trip requests in order to retain their account status) did not provide any material distinction between the two cases. The requisite mutuality of obligation was established by the ET’s findings as to the parties’ established practice and expectations. Therefore, the ET was entitled to take account of the provision that, once logged on, Mr Gascoigne was deemed to be “available and willing” to work.
The EAT’s conclusions here are similar in many respects to those reached by the EAT in the Uber case, where Uber drivers were found to be engaged as workers for as long as they were in the territory in which they were authorised to work, signed into the Uber app and were ready and willing to accept bookings.
The assessment of employment status will always be highly fact-senstive and it should not be assumed that all couriers or drivers working in the gig economy will be classed as workers. Employers should therefore carefully consider the facts of each case when attempting to assess employment status.
Finally, it is worth noting that the outcome of the current government consultation on employment status following the Taylor Review may change the existing employment status tests. However, it could be argued that, on the basis of the recent cases, the current law is working well in terms of deciding complex cases on employment status in ways to protect employees, where necessary.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.