Title

Autem vel eum iriure dolor in hendrerit in vulputate velit esse molestie consequat, vel illum dolore eu feugiat nulla facilisis at vero eros et dolore feugait

Employee or not Employee: That is Always the Question

The question of an individual’s employment status is one often put to us as Employment Lawyers, and one which always requires a fair few questions being posed in return to establish whether the relevant person is an employee, a worker or none of the above. It is a question that crops up in a number of sectors, often with Tradesmen and in particular the fields of dentistry and optometry.

The topic was recently revisited by the Employment Appeals Tribunal (“EAT”) in the case ofPimlico Plumbers v Smith. The core question was over Mr Smith’s employment status with Pimlico, the plumbing maintenance company.

Mr Smith drove a van with Pimlico’s logo on the side of it and even wore a Pimlico uniform when he was out plumbing; however the written agreement between the parties spoke to Mr Smith being in business for himself.

In addition Mr Smith accounted for his own tax and was registered for VAT. He was also insured independently of Pimlico and took his own tools and raw materials to each job. Pimlico was under no obligation to provide him with work, however Mr Smith was obliged to work a minimum number of hours each week, though there was flexibility as to when he worked them and indeed he could reject jobs as he saw fit.

The EAT upheld the decision of the original Employment Tribunal that Mr Smith was not an employee for the purposes of the Employment Rights Act 1996. The EAT found that the Tribunal of first instance was correct in making reference to the personal financial risk shouldered by Mr Smith in carrying out his work, as well as the discretion and flexibility he enjoyed in being able to provide quotes to customers. A core element of establishing Mr Smith as not being an employee was also that both parties in effect treated the relationship as him being self-employed, owing to certain of the above factors.

Furthermore the EAT also upheld the decision of the lower Tribunal that Mr Smith was a ‘worker’, in the main because he provided his services personally. There was no express provision between the parties which allowed for an unfettered right for Mr Smith to send someone else to carry out his work in his stead. At best, it was held, there was an informal toleration of job swapping between plumbers without any legal obligation being created, which was not held to amount to an unfettered right of substitution.

Conclusion

This case is a solid reaffirmation of the position across many sectors, in particular the trade and healthcare sectors, where employment status can often be quite ambiguous. The only time a light is shone on such relationships in when a problem arises, at which point it becomes far more difficult to avoid costly litigation to decide the point of status, let alone the core claims often being advanced of say unfair dismissal or discrimination.

The best way any employer can insulate themselves is to regularly review any contractual arrangements with those whom they believe they employ as well as those they are of a view they do not employ, but still possess certain of the characteristics held by Mr Smith referenced above.

As always if I can provide you with any further assistance on queries relating to employment status or any other issue, please do not hesitate to contact me for a free consultation on 0113 350 4030 or samira.cakali@scesolicitors.co.uk.


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here. 

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

%d bloggers like this: