|At the Tribunal|
|On 24 April 2018|
THE HONOURABLE MR JUSTICE SOOLE
MRS C BAELZ
MS P TATLOW
Transcript of Proceedings
|For the Appellant||MR RICHARD LEIPER
(One of Her Majesty's Counsel)
Baker & McKenzie LLP
100 New Bridge Street
|For the Respondent||MR PETER OLDHAM
(One of Her Majesty's Counsel)
MS TAMAR BURTON
12-20 Baron Street
WORKING TIME REGULATIONS - Worker
WORKING TIME REGULATIONS - Holiday pay
The Claimant was a cycle courier with the Respondent. The ET upheld his claim that he was a 'limb (b) worker' within the meaning of Regulation 2 of the Working Time Regulations ("WTR"); and in consequence entitled to holiday pay thereunder. In doing so it held that the written terms of contract between the parties, describing G as an 'independent contractor', did not reflect the reality of the relationship; and that, during the period when G was 'logged on' to the Respondent's app, there was a contract with mutual obligations for 'jobs' to be offered and accepted.
The Respondent appealed on two grounds.
First, that on the facts as found by the ET, there was no basis to conclude that G was under any legal obligation to work, i.e. to accept jobs offered to him when logged on. His decision whether or not to do so (as with his entitlement to log on or off at will) was a matter for his whim and fancy. Accordingly the claim must fail for lack of the necessary mutuality of obligation.
Further or alternatively, that the ET's 'multi-factorial assessment' that G had the status of a 'limb (b) worker' was vitiated by factual error and should be remitted to another Tribunal.
The EAT rejected both grounds of appeal.
THE HONOURABLE MR JUSTICE SOOLE
" "worker" means an individual who has entered into or works under (or, where the employment has ceased, worked under) -
(a) a contract of employment; or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker's contract shall be construed accordingly."
"5.1. you choose the days and times when you wish to offer to provide the Services [in accordance with the terms of the Driver Scheme] but unless we are informed otherwise, you agree that if you are in possession of and logged into an Addison Lee XDA you shall be deemed to be available and willing to provide Services.
5.2. For the avoidance of doubt, there is no obligation on you to provide the Services to Addison Lee or to any Customer at any time or for a minimum number of hours per day/week/month. Similarly, there is no obligation on Addison Lee to provide you with a minimum amount of, or any, work at all."
"32. Once a job had been sent through to him electronically the claimant contacted the controller to refuse it in exceptional circumstances only, for example if the parcel was too heavy to carry or he had a puncture. The expectation on both sides was that if he was given a job he would do it. There was no "decline" button on the computer and Mr Valentine [AL's 'Head of Couriers'] said that if a job was not picked up as expected, and the courier went silent, the controller would ring to find out what was going on. No doubt, when under pressure, some controllers could be quite demanding if the courier did not do as expected."
If the parcel could not be delivered, because for example there was nobody in at the delivery address, the controller would tell the Claimant what to do.
"35. It is difficult to assess the significance of some of these points, for example the claimant might always accept a job because he wanted the money not because he was obliged to do so. As Mr Valentine agreed, there was a perception among couriers that they would be refused future work if they did not do as they were told and also couriers wanted to keep their controller sweet by being cooperative, so the extent of the control exercised over them was rarely if ever tested. Suffice to say that from the time the claimant logged in, room for manoeuvre was, literally, limited and both sides expected that he was available for work, would be provided with it and that he would carry it out as directed by the controller."
"29. there is evidence that the claimant would pre-book holiday, as required in earlier contracts, and to make sure that there was always a job to return to. If, as was sometimes the case, he did not tell a controller of his absence, there would however be no formal consequences. This was partly because cycle courier work would be picked up by motorbike riders or taxi drivers if there was a surplus. Far from the claimant letting his customer down, the efficient Addison Lee team would make sure there was no drop in the level of service provided. This was the same whether the claimant was theoretically a subcontractor for the respondent or the respondent was his agent."
a. The respondent and the claimant worked together in a team and under a contract whereby the claimant was expected to carry out work for the respondent, under its direction, when logged into the system.
b. He performed the work personally, and not because Addison Lee was his client or customer.
Applying Autoclenz, I do not consider that the contract of October 2015 portrays the relationship correctly and it is just one source of many to be taken into account."
"53.1. One of the few parts of the contract of October 2015 which does ring true is the final phrase of clause 5.1 which says "unless we are informed otherwise, you agree that if you are in possession of and logged into an Addison Lee XDA you shall be deemed to be available and willing to provide Services". That was indeed how the claimant and his controllers operated. His willingness had to be more than theoretical because, if he had logged in when not actually available, his whereabouts would have shown up on the GPS tracker and, if he was not in central London, he would have taken longer to do the job and therefore earned less per hour.
53.6. The claimant was put under pressure, albeit gentle pressure, from his controller if he did not pick up a job when logged on and he was not expected to decline it; his XDA had no "decline" button. When he declined the job this was akin to him saying "this is not in my job description" although not in an obstructive way because if a parcel was too heavy it was not safe for him to carry it. No one can seriously argue that if the claimant had a puncture and told the controller he could not carry out the job, this was evidence of there being no contract.
53.7. Once the claimant had accepted the job there was no way that he would not complete it unless, again, circumstances such as a puncture got in the way. He was subject to a classic wage/work bargain.
53.8. The claimant was not running his own business, see below, and had no contracts with the Addison Lee customers he was working for. Since he was under an obligation to work it must have been that he was obliged to the respondent, it would be odd indeed if he was not working under a contract. This last point is another example of how the test is one of interconnected elements."
"The claimant worked flexibly, sometimes to the point of being erratic, but because he was not running his own business this did not affect his income while at work and nor did it affect Addison Lee's because they could fill in for him with other couriers. Erratic behaviour from an employee could lead to dismissal and from a small business would jeopardise sales."
The Tribunal also recorded AL's admission that, due to the need for DBS clearance, personal performance was required.
"57. This was a working arrangement which did not lend itself to the interpretation which the armies of lawyers tried to promote. The claimant was part of a homogenous fleet and a homogenous operation which promoted Addison Lee to customers and looked after its own. There is nothing wrong or bad about that, it simply does not fit with the employment status for which the respondent contends."
"30. The ET judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid."