On 13th June 2018 the Supreme Court dismissed an appeal by Pimlico Plumbers and upheld rulings (by the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal) that a plumber was a worker for the purposes of the Employment Rights Act 1996 and the Working Time Regulations 1998.
Facts
Gary Smith (Smith) worked for Pimlico Plumbers (‘Pimlico’) as a plumber and heating engineer for a period of nearly six years before he suffered a heart attack in 2011. Smith requested a reduction in his working days from five to three. Pimlico rejected his request and subsequently took away his company branded van and dismissed him.
Smith argued that his dismissal was unfair and brought claims in the Employment Tribunal for unfair dismissal, wrongful dismissal, entitlement to medical suspension, holiday pay, unlawful deductions from wages and disability discrimination.
Claim
During the course of proceedings Smith argued that his dismissal was unfair. Pimlico argued that he was not entitled to make such a claim as he was not an employee or a worker. He was self-employed. His contract stated he was an independent contractor. He was registered for VAT, submitted invoices to Pimlico and filed tax returns on the basis he was self- employed.
As preliminary issues, the tribunal had to decide if he was an employee or a worker. In so doing, it considered (among other things) whether he was obliged to accept work, whether there was an obligation on Smith to perform work personally, whether Pimlico could be categorised as a client or customer of Smith as opposed to his employer, whether he had to provide his own tools and whether he bore significant proportion of the commercial risk.
The tribunal found that he was a worker. The Employment Appeal Tribunal and the Court of Appeal upheld the tribunal’s findings. However, Pimlico appealed to the Court of Appeal and more recently to the Supreme Court.
Decision
In its judgment, the Supreme Court found that although Mr Smith was able to exercise some independence in the course of his employment, he was largely controlled by Pimlico. It considered that the tribunal had properly considered the fact that Smith was required to wear a company uniform and that Pimlico controlled when and how he was paid.
Smith will now have to pursue his claim for unfair dismissal at the Employment Tribunal.
Effect
This case does not provide any new guidance or principles on the definition of a ‘worker’ for the purposes of the Employment Rights Act 1996. Instead it shows what the court should consider as persuasive factors to determine employee or worker status. The findings in this case will affect employers, highlighting the need to construct contracts carefully, ensuring they are fit for purpose.
If you would like to discuss any of the issues raised in this case please contact a member of the Employment Department.
This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.
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