Gig Workers – a case law update
We recently had another instalment in the 8 year legal drama of Pimlico Plumbers Ltd and Another v Smith. This case began in 2011 and the arguments brought were over whether Gary Smith, a “self employed” plumber, was entitled to the rights of a worker. Such rights include minimum wage requirements, holiday pay and protection from discrimination.
Gary Smith started working for Pimlico Plumbers in 2005 under a contract which stated that he was a “subcontracted employee”. In April 2011 his contract was terminated following a period of illness. He brought a claim against Pimlico Plumbers to the Employment Tribunal. The question of his status was important because he was relying on ‘worker’ status in order to submit claims including holiday pay and disability discrimination. The Employment Tribunal, and then the Employment Appeals Tribunal and Court of Appeal held that he did qualify as a ‘worker’. Pimlico took the case to the Supreme Court in June 2018. The court unanimously held that Gary Smith qualified as a worker and therefore was entitled to the rights of a worker.
The decision was based not on the contractual wording but on the facts that Gary Smith had to personally perform the work, he had to drive a branded van and wear a Pimlico Plumber uniform.
Gary Smith’s claim then went back to the Employment Tribunal to be heard on the basis that he was a worker. In March 2019 Gary Smith lost his claim for £74,000 in holiday pay because he hadn’t filed his claim for back pay within the required timeframe. He stated that this was because he was unaware that he was entitled to paid leave while he was a worker.
Interestingly, legislation was enacted at the end of 2018 requiring a ‘written statement of rights’ for all workers, which will come into force from 6 April 2020. This would require such terms to be set out.
A bittersweet conclusion for Mr Smith, but some lessons to be taken for employers. The case shows that regardless of the contractual label applied, the court will look behind the written document and view the true nature of the contract. Therefore, employers should review contracts to ensure that they reflect the true picture of the relationship.
If you require support on a contract review or advice on employment contracts please do contact us at Clover HR at 01905 824051 or 0121 5160299 or info@cloverhr.co.uk
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