Pimlico Plumbers & Charlie Mullins v Gary Smith
The Court of Appeal dismissed the appeal by Pimlico Plumbers, the Court of Appeal upheld the EAT decision that the plumbers employed by Pimlico plumbers are workers, not self-employed contractors. As the Master of the Rolls said: "This case puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that... there is a legal relationship of... independent contractor rather than employer and employee or worker."
Although the Claimant wore Pimlico Plumber's uniform and drove a van with Pimlico's logo, the written agreements gave the impression he was in business on his own account i.e. self-employed.
The Claimant was paid against receipt of invoices, personally accounted for tax and was VAT registered. He was required to provide his own tools, equipment and materials and maintained his own insurance. Although required to work a minimum number of weekly hours, he could choose particular working hours and could reject particular jobs. Pimlico was under no obligation to provide work if none was available.
EAT decision: In upholding the decision that he was not an employee, the EAT held the employment tribunal had been entitled to have regard to the Claimant's financial risk, the degree of autonomy as to quotations and how work was carried out. It was also of significance that both parties acted as though the Claimant was self-employed.
The EAT also upheld the decision that the Claimant was a 'worker', largely because it was envisaged that he would provide personal service. It was reaffirmed that an unqualified right to provide a substitute negates personal service but that where prior consent to a substitute is required the right is not unfettered.
There was no express provision which permitted substitution and, it was held, the most Pimlico Plumbers was willing to tolerate was a form of job-sharing or shift swapping without any legal obligation, which was insufficient to amount to an unfettered right of substitution.
Comment: Although it is fact sensitive case it is nevertheless likely to be a leading case on employment status in future years. It follows the two other recent cases of Uber and CitySprint where the worker won their case against the firms who looked at the reality of the situation. This is an area very much in the limelight and other cases are in the pipeline. There is currently a review due to be published in the Summer by Matthew Taylor (appointed by PM Teresa May) that is looking at whether the existing employment law is keeping pace with modern working practices and ‘gig economy’ bosses e.g. Deliveroo, Uber, Hermes and Amazon, have had to defend their business models at a Work and Pensions Select Committee inquiry.