We have been keeping an eye on the progress of employment status cases. We advise many Trade Unions, Associations and clients in respect of these issues. Employment status attracted huge amounts of publicity with the likes of Uber and other gig economy cases.
This month judgment was handed down on the Addison Lee case.
Addison Lee is a professional private hire firm using about 4,000 drivers to service the needs of commercial and private customers.
A number of Claimants brought claims against Addison Lee asserting they were entitled to holiday pay and to the National Minimum Wage. Such entitlements will only exist if they were considered ‘workers’ rather than genuinely self-employed.
The Employment Appeal Tribunal has had to review the systems of work and contracts used by Addison Lee to determine whether the Employment Tribunal was right to conclude that the Claimants were indeed workers.
The following points are of note.
- Addison Lee provided new drivers with induction, training and documentation indicating how to do the job.
- There was a code of conduct and driver guidelines.
- The hired vehicle was in the Addison Lee livery.
- Slides in training told the drivers they would be representing Addison Lee at all times when they were in the vehicle.
- Drivers were given a handheld computer and when ready to work would log on to the system from the vehicle.
- Allocation of jobs was automatic – the system looked for an available driver close to every job and operated a queuing system.
- Once a job was notified to the driver, he or she had to accept it. If they did not do so they had to give an acceptable reason.
- If a driver was late in arriving at a destination to collect a pre-booked customer there could be sanctions.
The contractual documentation issued to the drivers indicated there was no obligation on them to accept work – they could choose the days and times they wanted to offer their services. There was no obligation on either party to offer a minimum number of hours or work a minimum number of hours.
However, the Tribunal reviewed the circumstances and previous case law and concluded the drivers did qualify as workers in that they performed work for Addison Lee personally and Addison Lee was not a client or customer of their professional business. The Tribunal held there was both an overarching contract whereby Addison Lee drivers were committed to the business as workers, but also an individual contract on each occasion when work was accepted. In the circumstances, the drivers were entitled to holiday pay and the National Minimum Wage.
The Employment Appeal Tribunal went on to find that the time drivers spent logged on and waiting for customers was indeed ‘working time’ for the purposes of determining how much they should be paid and how much holiday entitlement accrued. Referring to the Uber case, the Employment Appeal Tribunal decided that being available was an essential part of the service rendered and therefore amounted to working time.
We are seeing, time and again, Tribunals finding in favour of individuals like the drivers in Addison Lee. If companies want people to work for them, particularly where they are providing a service, they need to have control over how that service is provided. If companies want control over that service and want to impose standards, the simple point seems to be that they must observe individual employment (or at least worker) rights.