It’ll all come out in the wash
By Employment Director, Patricia Rooney.
Those of us who have had an urgent need for a plumber don’t much care whether the person who deals with the emergency call out is employed by a national company or carries on business on their own account. So today it may just be employment lawyers who will be absorbed in the outcome of the first day of hearing of Pimlico Plumbers and Smith at the Supreme Court. However, anyone who engages, or is engaged as, a self-employed contractor should be interested in the decision of the court.
Out of the 10 major cases to date involving the status of an employee/worker/self-employed individual, including Uber (currently the subject of an appeal to the Court of Appeal), 9 have decided in favour of bestowing the status of “worker” on an individual previously considered as self-employed.
Mr Smith isn’t different. In all court rounds so far, Mr Smith has come out as victorious, earning rights that go with being a worker. Engaged for 13 years by Pimlico Plumbers as a self-employed plumber, Gary Smith was registered for VAT, took care of his own tax affairs, drove a Pimlico Plumbers branded van and wore their uniform. He suffered a heart attack in 2010 and at that time asked Pimlico Plumbers to reduce his hours to 3 days per week. Pimlico refused and terminated the arrangement. Mr Smith issued legal proceedings against the Company claiming, amongst other things, unfair dismissal and disability discrimination. So far, the courts have declared him to be a worker – someone who personally provides services, that hybrid state somewhere between an employee, who works under a contract of employment, and a self-employed contractor, who has a contract for services.
The Supreme Court has another opportunity to examine the nature of the relationship. Not only will the Court determine the exact nature of Mr Smith’s relationship with Pimlico but hopefully provide useful guidelines that will assist in other instances.
At present, there is no simple test to determine the status of worker/employee/self-employed but rather the consideration of a myriad of factors including the obligation to do or provide work; the right of substitution; control; the provision of tools; integration into the workforce and assumption of risk amongst others. Having the status of worker, rather than a self-employed contractor, brings both rights and obligations. The worker has the right to receive, and the “employer” to pay, national minimum wage, annual leave, rest breaks, pension auto enrolment and also protection against discrimination. These can be expensive obligations for a company.
Consequently, guidance from the Supreme Court would be of assistance in helping to identify when such rights and obligations might be triggered.
As Caspar Glyn QC of Cloisters Chambers has put it: Employment status is a complex and wide-ranging subject that many have said has no real solution – and that if we did manage to “solve it”, we should immediately move on to world peace as clearly we would be on a roll.
Much is expected from the Supreme Court when judgment is given.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.