In the run up the Presidential Election in the U.S. Hilary Clinton said that the ‘gig, economy is creating exciting economies and unleashing innovation. But it is also raising hard questions about workplace protections and what a good job will look like in the future’. The gig economy, also known as the ‘on demand economy’ is in the spotlight at the moment in the UK and here’s another case that is creating some worker status uncertainty.
A tribunal has ruled that a bicycle courier is a ‘worker’ of a courier firm despite the contractual documents describing her as a self-employed contractor. The courier in this case (D) brought a claim for holiday pay but the ruling entitles her to other benefits such as the national minimum wage, rest breaks and whistle-blower protection.
The key facts
The terms agreed between the couriers and CitySprint (CS), the courier firm, make clear that:
- a courier is under no obligation to provide services
- CS is under no obligation to provide:
- work
- holiday pay
- maternity pay
- sick pay
- a courier may send a substitute to work in her place subject to strict conditions.
D is paid by the job. CS automatically calculates payments due and pays D weekly in arrears. She usually works four days a week from 9:30 am to 6:30 pm. She logs into CS’s electronic tracking system at the start of each day and moves from job to job, with gaps between jobs ranging from ten minutes to an hour. She remains in contact with a controller by radio/mobile phone throughout the day. She logs out at the end of the day when she goes home.
The decision
The Tribunal held that the contractual arrangements were contorted, indecipherable and window-dressing. The judge said that CitySprint had unlawfully failed to award holiday pay to Dewhurst by wrongly classifying her as a self-employed freelancer instead of considering her as a worker
Departing from the wording of the contract
A tribunal can depart from the wording of a contract and look at the reality of a situation if there is a contradiction.
The key issues in this case that led to the decision were these:
- Substitution clause was prescriptive as to who could be a substitute. In reality D can only ask for colleagues to swap jobs with her.
- inequality of bargaining power at the recruitment stage.
- Level of D’s integration into CS’s business
- expected to work when she said she would,
- given directions throughout her ‘on circuit’ time
- instructed to smile and wear a uniform,
- told when she would be paid and how much, according to CS’s calculations.
This decision follows a ruling a few months ago, in which two drivers won a similar case against Uber. The employment tribunal had then ruled that Uber should treat them as workers instead of self-employed freelancers, making them eligible for more benefits such as minimum pay and holidays. That decision is being appealed.
