Employment Law Snapshot – Issue 12

Introduction

Welcome to Issue 12 of my Employment Law Snapshot.

Hello and welcome to January 2017.

It’s been a pretty quiet start to the New Year and completely lacking in controversy. There’s only been the recent decision of the Supreme Court dismissing the Government’s argument that it has the power to begin official Brexit negotiations with the rest of the EU without Parliament’s prior agreement.

And of course, Donald J Trump became President last week following an entirely uncontroversial inauguration. It was fascinating to see the first 2 days of his presidency focussing on whether his crowd numbers were bigger than Obama’s and the reliance on ‘alternative facts’ to support his position.

On that note, I’m delighted to announce that this article has already had over 1 million views. As far as alternative facts are concerned – this is simply ‘tremendous’.

On with the law.

The Legal Stuff

This week’s case is a follow up to episode 11 and the Uber decision relating to workers in the ‘gig economy’.

The case is called Dewhurst v Citysprint.

In this case the Tribunal was, again, faced with the challenge of the ‘Gig Economy’ and the often fine line between worker and self-employed status.

The claimant, Ms Dewhurst, was a cycle courier working for Citysprint, based in Central London. Citysprint says it is one of the ‘UK’s largest and fastest-growing same day courier businesses’ operating a fleet of around 50 to 60 cycle couriers.

Ms Dewhurst was part of the company’s medical fleet (one of around 10 couriers), working four days per week.

Ms Dewhurst argued in the Tribunal that she was, in fact, a worker as opposed to being a self-employed contractor, as alleged by the company.  As such, she claimed that she was entitled to the basic employment rights that come with being classified as a ‘worker’ such as holiday pay, sick pay and the national living wage. Specifically, she was claiming for the company’s failure to pay her for two days’ holiday.

In the Tribunal, Citysprint said that it recruits its couriers as ‘independent contractors’ under a document entitled ‘Confirmation Tender to Supply Courier Services to Citysprint (UK) Ltd’. Although the couriers weren’t obliged to physically sign this document (in the way that employment contracts usually are) they had to read and acknowledge its terms. The document stated that the recruits are ‘self-employed’ and neither ‘an employee nor a worker’ of Citysprint.

Under this agreement the courier agrees to undertake assigned jobs and comply with the job details. However, the agreement said that Citysprint had no obligation to offer work and that the courier wasn’t under an obligation to accept work offered to them.

Some of the details that came out during the case included the fact that couriers, like Ms Dewhurst carried with them a “Citytrakker”. This is an electronic tracking device that had to be switched on whenever the courier was available to accept jobs. This system tracks the couriers’ whereabouts and helps the controllers to assign and manage jobs.

However, the agreement said that Ms Dewhurst had the right to send a substitute in her place for any particular job, provided that she notified Citysprint in advance. Citysprint argued that this was a clear indication of a contractor relationship because the courier didn’t have to provide the services personally.

However, the Tribunal took the view that this clause was, in reality, inoperable and in practice Ms Dewhurst didn’t have the right to send a substitute in her place. This was because her role required security clearances and specific training and equipment that would allow her to transport medical supplies, such as blood. It was therefore not easily transferrable and she was in fact personally contracted to carry out the work.

Citysprint also tried to rely on their ‘self-billing’ payment process as evidence for their couriers being self-employed. However, as the couriers’ payments were automatically calculated and were paid weekly in arrears, this was not enough to convince the Tribunal that they were self-employed. The couriers didn’t have to invoice for their own work which is very different to the normal way that a self-employed contractor operates.

On the evidence, the Tribunal concluded that Ms Dewhurst was in fact a ‘worker’ and not a self-employed contractor during the time that she was logged onto the Citytrakker. Once again, as with the Uber case, the Tribunal were prepared to look behind what the agreement between parties said and consider what the true relationship was.

The Tribunal found that Ms Dewhurst was highly integrated into the business and was expected to work if she’d said that she would. She was in constant contact with the controllers via the Citytrakker, radio and mobile phones and any change to her working pattern had to be discussed with the controllers.

Ms Dewhurst was therefore working on Citysprint’s behalf and was ‘economically and organisationally dependent’ upon the company. She was a ‘worker’ from the moment she switched on her Citytrakker to the moment she logged out.

This decision currently applies to Ms Dewhurst only but it’s a huge warning (again) to businesses that operate similar models. The question of worker status is likely to be a common theme in the Tribunals this year, as it’s been reported that other individuals are pursuing companies such as Addison Lee, eCourier and Excel for employee or worker status. So, watch this space.

And Finally…

Staying on the subject of being self-employed, I’ve no doubt that many of us are scrambling around at the moment to fill in our self-assessment tax returns and checking down the back of sofa to find enough to pay our tax bill.

On that note, I read a great story this week about an angry American chap who decided to pay a tax liability in quite an extraordinary way.

Apparently, this story began when Nick Stafford from Virginia tried, in vain, to get information about his tax liability for sales tax on two new cars from the Department of Motor Vehicles. After a number of refusals to provide telephone numbers for the DMV, Mr Stafford filed three lawsuits against them. When the law suits were dismissed, Mr Stafford decided to make things inconvenient for the DMV, by paying the $3,000 tax bill by delivering 300,000 coins to the local DMV office in 5 wheelbarrows!!

It was reported that it took DMV staff seven hours to count the coins. However, it apparently cost Mr Stafford $1,000 to buy the wheelbarrows and hire people to break open the hundreds of rolls of coins. I’m not quite sure who had the last laugh here, but I found it funny!

Until next time.