The Court of Appeal recently grappled with the tricky question of whether a plumber really was self-employed.
Gary Smith worked as a plumber for Pimlico Plumbers. He was VAT registered, taxed on a self-employed basis and provided his own materials. However, he was also required to be available for work 40 hours per week; comply with the company’s rule book; drive a company-branded van; use a company-issue mobile phone; and wear a company uniform. Pimlico Plumbers considered him to be self-employed.
Mr Smith had a heart attack and asked if he could reduce his weekly working time. The company refused and terminated his contract.
He brought claims for unfair dismissal, wrongful dismissal, holiday pay and disability discrimination. The Employment Tribunal decided that he was not an employee and therefore could not claim unfair dismissal.
However, it decided that he was a “worker” rather than a self-employed individual. Crucially, this meant he was entitled to claim holiday pay and disability discrimination. Both the Employment Appeal Tribunal and the Court of Appeal agreed with this decision.
However cleverly an employer dresses up a relationship to make it look as though individuals are self-employed, ultimately the way in which the contract works “on the ground” will determine the question.
Factors which can determine that an individual is a “worker” rather than self employed include:
• the individual cannot send a substitute of their own free choice to cover for them;
• there is a requirement to wear a uniform, drive a branded vehicle or carry an ID card;
• the company controls the individual’s activities – such as by issuing rules about how they must conduct themselves; and
• the company demands a minimum number of hours’ availability for work.
The stakes are high: individuals who are held to be workers are entitled to a raft of rights including the right to be paid the national minimum wage, the right to holiday pay and the right not to be discriminated against.
Now more than ever, companies should have the status of their “self-employed” contractors checked out to ensure that they do not qualify for workers’ rights.
For further help or advice, contact Brian Harrington on 01904 561433 or email@example.com.