Hot on the heels of the Uber case we now have another Tribunal decision affecting people working in the so called gig economy. This time it involves a bicycle courier from CitySprint. Ms Dewhurst sued CitySprint for non-payment of holiday pay on the basis she argued she was a worker and not a self-employed individual as the company claimed. She referred to the control CitySprint exercised over her including what jobs to do, when to do them and how to do them. CitySprint on the other hand sought to rely on their contracts which make it clear couriers are self-employed individuals.

The Tribunal upheld Ms Dewhurst’s claim. They were satisfied that she was a worker and were seemingly unimpressed with CitySprint’s contractual arrangements which it described as “contorted”, “indecipherable” and “window-dressing”. CitySprint were ordered to pay Ms Dewhurst for 2 day’s holiday.

So why does someone’s employment status matter? 

There are three different categories of employment status:

(i) Employees

(ii) Workers

(iii) Self-employed individuals

An employee is someone who has entered in to or works under a contract of employment. There are a number of tests the Tribunal consider when determining whether someone is an employee including:

(i) Mutuality of obligations – is the employer obliged to provide work and is the employee obliged to accept that work?

(ii) Control – does the employer control what is done, when it is done, how it is done and where it is done?

(iii) Personal service – is the employee obliged to provide their services personally?

(iv) Integration – how well integrated is the employee in to the employer’s business e.g. are they subject to discipline and grievance procedures, appraisals etc.

A worker is defined as an individual who enters in to or works under:

(i) a contract of employment; or

(ii) any other contract where they are required to personally perform any work or services for another party who is not client or customer of any profession or business carried on by that individual

Worker status is a relatively new concept that effectively lowers the pass mark for individuals who would not qualify as employees but who are not genuinely self-employed. Self-employed individuals enter in to contracts to provide certain services to other people or organisations and in those situations there is no obligation on them to provide those services personally.  

It is important to correctly identify someone’s status not least because it determines what, if any, employment law protections they may benefit from. In this regard, employees receive the most comprehensive protection including the right not to be unfairly dismissed, the right to receive a statutory redundancy payment and various family friendly rights amongst others. Self-employed individuals do not benefit from any employment law protections whilst workers occupy something of a mid-point between the two and they benefit from a limited range of protections including the right to receive the national minimum wage, paid annual leave and protection against unlawful deductions from wages.

Comment

As the CitySprint and Uber decisions highlight, there is still a great deal of uncertainty surrounding the employment status of individuals working in the gig economy and these decisions may well signal the start of a wave of tribunal claims from people engaged on similar terms. Such is the concern the government has launched an inquiry in to the status and rights of individuals working in the gig economy. The report is due to be published in Spring 2017. Until then we will have to watch this space to see how things develop in this rapidly changing area.