Yesterday the Supreme Court made a landmark ruling that will have wide-reaching implications for workers' rights.
Gary Smith worked for Pimlico Plumbers as an 'independent contractor', wearing their uniform, driving a branded vehicle and working only for them. When Gary had a heart attack and needed to work reduced hours, Pimlico refused his request and dismissed him.
Worker status means entitlement to a national minimum wage, holiday pay and protection from discrimination.
The decision has the potential to impact the rights of many people classified as independent contractors across the UK, including those at gig economy firms such as Uber and Deliveroo.
The company argued that Mr Smith had freedoms, such as the option to substitute someone else to carry out his work, if he wished.
But the Supreme Court justices said: “The dominant feature of Mr Smith’s contract was that he must do the work himself.”
The company exercised “tight administrative control” over Mr Smith and he “undertook to do the work personally”, the Supreme Court said.
Pimlico Plumbers required Mr Smith to wear a company branded uniform and to lease one of its vans, which displayed the company's logo and equipped with a GPS tracker. Mr Smith also had to work a minimum number of hours per week.
The Equality and Human Rights Commission (EHRC) funded Gary's case with TMP Solicitors since July 2015, throughout the Court of Appeal and Supreme Court. They thought that as Gary worked for Pimlico Plumbers, the Equality Act should protect him. He should have been able to claim discrimination when they refused his request for support following his health issue.
Rebecca Hilsenrath, chief executive of the EHRC, hailed the judgment as “one of the biggest decisions ever made by the courts on workers’ rights”.
“If you wear the uniform, if you drive the branded vehicle, if you only work for one business, you are employed. That means you are entitled to the appropriate protections and adjustments which go with the job, to enable you to work safely and productively. Everyone has the right to a healthy working environment, and to that end businesses need to recognise their duties to their workers.”added: “Thousands of workers like Gary Smith could now find themselves with the added security of benefits like sick pay and holiday pay.”
Susannah Kintish, an employment partner at Mishcon de Reya led the case for Pimlico since 2011. She said it was disappointing the Supreme Court had not laid down any clarifications for employers about how to classify workers.
“Instead, all eyes will be on the government as businesses await legislation on how to categorise their workforce – something which could still be a matter of years away,” Ms Kintish said.
“In the meantime, the gig economy continues to evolve and existing employment law is rendered increasingly unfit for purpose.
“The Employment Rights Act dates back to 1996. The world of work has transformed since then. The law around classifying a worker goes back to 1875.
“The Supreme Court justices have made it clear that this judgment is very specific to the unique facts of the case. It will therefore do little to stem the flow of litigation around worker status which, in the absence of any overarching principles, will need to be determined on the specific circumstances of each case.”
The TUC called for the burden of proof to be reversed when it comes to employment status so that employers would have to be able to demonstrate that a contractor was genuinely self employed rather than individuals having to prove they are workers.
This is one of the recommendations of the Institute of Employment Rights' (IER) Manifesto for Labour Law. Their experts also propose that the three-tier employment status system is replaced with a universal status of worker for all people in employment. This would provide the same statutory rights from day one to everyone but the self employed. It's a move supported by Solidarity union.
Pat Harrington, general secretary of Solidarity, commented: "I've got some sympathy for the points put forward by Susannah Kintish. The government hasn't taken a very proactive role or stepped up to clarify the legal definitions. The IER suggestion would clear-up many problems."