Classifying the employee Kahn-Freund (1977) described the contract of employment as the cornerstone of the modern labour law system. There is no comprehensive statutory definition of either “employee” or “contract of employment”. Freedland (2003,p.22) has been very critical of the “strict legal dichotomy” between the employed & self-employed. Freedland (2006) argues that it is necessary to reconceptualise the employment relationship to afford protection under employment law for a wider set of relationships. Michael Forde: Employment Law Second Edition. Those who work for others fall into two main legal categories. They may be employees, that is persons who work under what is known as a contract of employment or service. Alternatively, they may be self-employed, working for numerous persons under contracts for services. A typical employee works only for one employer, arrives at and departs from the job at pre-ordained times, is paid at a fixed rate which is usually based on the hours spent working, and takes instructions from the employer on how the work is to be done i.e. factory workers. However, there are significant examples of who might be described as atypical workers, who are neither obviously employees nor plainly self-employed. Contract ‘of’ services: employee. Contract ‘for’ services: independent contractor. The distinction is important in terms of: statutory employment protection; entitlement to state benefits; tax assessment purposes; social welfare contributions; vicarious liability; treatment as a preferential creditor if an employer is wound-up or put into receivership. Defining a contract of employment Terms of Employment (Information) Act 1994 (s 1) defines a contract of employment as: o “(a) a contract of service or apprenticeship, and o (b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract)”. Payment of Wages Act 1991 and the National Minimum Wage Act 2000 apply a wider definition of a contract of employment. Both Acts define a contract of employment as occurring in contracts where an individual has agreed with another person to do, or perform personally, any work or service for “a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual” (1991 Act) or “that person or a third person (whether or not the third person is a party to the contract)” (2000 Act). Employment Equality Act 1998 (as amended in 2004 by s 3 of the Equality Act 2004) which includes contracts whereby “an individual agrees with another person personally to execute any work or service for that person” Applicable Tests: (i) Control test, (ii) Integration test, (iii) Economic reality test, (iv) Entrepreneurial test. Control Test: Most commonly used test – whether, under the terms of the contract, expressed or implied, the employer has “the power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done.” – Ready mixed concrete Ltd v Minister for Pensions [1968]. Yewens v Noakes [1880] ‘a servant is a person subject to the command of his master as to the manner in which he shall do his work’. Person was an employee if an employer could tell him not only what to do but how to do it. Grounded in agricultural/ early industrial society. Roche v Kelly [1969] IR 100 – a vicarious liability case, Walsh J observed that “while many ingredients may be present in the relationship of master and servant, it is undoubtedly true that one principle one, and almost invariably the determining one, is the fact that the masters right to direct the servant not merely as to what is to be done but as to how it is to be done. In Re Sunday Tribune [1984] IR 505 – An employer – employee relationship can exist without there being any form of extensive control. In the case of highly skilled personnel, especially those doing work of a professional nature, the employer may exercise very little control. Carroll J stated that the Control Test was too simplistic in these situations. On the other hand, there can be extensive control, but the engaged person is nevertheless an independent contractor. O’Keeffe v Hickey [2009] 1 ILRM 490 The Integration Test: “employed as part of the business, and his work done is integral part of the business.” As opposed to being “not integrated into but only accessory to the business.” This test provides that under a contract of service the work done is an integral part of the business. Example 1: is a doctor in a hospital an employee of the hospital or an independent contractor? Example 2: you regularly contribute to a newspaper; you have no regular hours, write for other papers and journals & have leave to write books. For this particular newspaper you write regularly, including leaders & are an active member of the editorial staff, attend regular meetings & take part in editorial decisions. Are you an employee? In Re Sunday Tribune [1984] IR 505: One of the journalists wrote a column for the Sunday newspaper for 50 out of 52 weeks in the year and took part editorial conferences and received holiday pay. She was held to be an integral part of the business of the newspaper and, accordingly, one of its employees. Another wrote for the paper on a regular basis but not every week, she would not work on a piece until it was commissioned by the editor. She was not paid at a rate per word but on the basis of a collective agreement with the National Union of Journalists. Carrol J. concluded that she was not an integral part of the business, and therefore was an independent contractor in respect of her dealings with the company. The difficulty with this test for identifying employees is that the courts have not spelt out in general terms what is meant by integration. If the person assumes some commercial risk in doing the job, he most likely will be classified as self employed regardless of how integrated he is in the employer’s business. Economic Reality / Entrepreneurial / Enterprise Test Does the worker provide work for remuneration and agrees to be subject to the company’s control? This test looks at the economic reality behind the relationship. Market Investigations Ltd v Minister for Social Security [1969] 2 QB 173 Entrepreneurial test looks at whether the worker has engaged him/herself to perform the services performing them as a person in business on his/her own account? O’Coindealbhain v Mooney [1990] – the respondents job was as a branch manager of the social welfare office in a country town, his remuneration comprised certain allowances and a fixed fee related to the volume of work performed; he was required to purchase and furnish his own premises and to employ competent assistants. He was held to be selfemployed, principally because “his profit is the amount by which his remuneration exceeds his expenses; the lower he can keep his expenses the greater the profit.” Ready Mixed Concrete (South East) Ltd v Minister for Pensions and National Insurance [1968] 2 QB 497 Contract drivers (former employees) obliged to use vehicles bought on hire purchase from the company. Vans were in company colours, had a company logo & were maintained in accordance with company standards. Drivers could only use the vans for company business; had flexible hours; pay was based on the amount of concrete hauled subject to an annual minimum rate; drivers could hire substitutes. Dispute arose over the payment of national insurance contributions. MacKenna J adopted an open-ended approach to the question of determining employee status. “A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service…. The servant must be obliged to provide his own work and skill. Freedom to do a job by one’s own hands or by another’s is inconsistent with a contract of service, though a limited or occasional power of delegation may not be…”. (at 515) Henry Denny & Sons (Ireland) Ltd. trading as Kerry Foods v. Minister for Social Welfare [1998] Worker hired as in-house demonstrator – demonstrating & marketing applicant’s products in supermarkets. She had a brief induction; worked 28 hours per week at rate of £85 a week for 4850 weeks a year. She could refuse work but could not have others do the work for her. Demonstration stand, uniform, products supplied to her & she had to abide by regulations & directions of supermarket. No entitlement to holiday pay or sick pay. She was not a member of the company’s pension scheme. Yearly contract signed stating it was a separate contract & she was free to do other work. Yearly contract ended in 1988 – she continued to do work for company under separate agreements for another five years. Agreements set out that she was an independent contractor, not an employee. 1992 – both parties required to fill out a form to determine whether she was an insurable person under the Social Welfare Acts 1993-1997. If contract was one of service she would be insurable. Social welfare officer decided she was an insurable person. Company appealed this decision – appeals officer rejected the appeal (worker was subject to control, discretion of & dismissal by the company) – decision reviewed & upheld by chief appeals officer. Company appealed to High Court – Carroll J applied the tests & held worker was an insurable person. Company appealed to Supreme Court - Keane J dismissed appeal. (1) the extent and degree of control exercised by one party over another in the performance of work; (2) the entrepreneurial test. Keane J concluded that: “while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her”. [1998] 1 IR 34 at 50. Minister for Agriculture and Food v Barry [2009] 1 IR 215 Appeal to the High Court on a point of law from the Employment Appeals Tribunal (EAT). Respondents worked as temporary veterinary inspectors (TVI) at a meat factory in Cork. To become a TVI, each respondent had to apply for approval from the Dept of Agriculture and Food & once approval had been granted, each respondent had to submit a written application for inclusion on a TVI panel for the purposes of selection for work in certain meat plants. The Cork meat plant closed & subsequently, the respondents claimed entitlements under the legislation regarding redundancy & notice. This entitlement was contingent on the respondents being deemed employees of the appellant. EAT deemed the respondents to have been employed under a contract of service & thus were employees. Appellants appealed to the High Court. Edwards, J. held that the EAT had erred in law in its approach to the correct tests to be applied. Edwards J. also found that the EAT had misconstrued the decision of Keane J. in Henry Denny as it had referred to Keane J’s judgment as providing a “single composite test” to the enterprise test. EAT had determined that the issues of control and integration were simply to be used as elements in applying the enterprise test. Edwards J found that this was a misreading of the decision in Henry Denny. Edwards, J. : “I believe that this confusion derives primarily from misguided attempts to divine in the judgment the formulation of a definitive, ‘one size fits all’ test in circumstances where the learned judge was not attempting to formulate any such test… I think it can sometimes be unhelpful to speak of a ‘control test’, or of an ‘integration test’, or of an ‘enterprise test’, or of a ‘mixed test’, or of a ‘fundamental test’ or of an ‘essential test’, or of a ‘single composite test’ because, in truth, none of the approaches so labelled constitutes a ‘test’, in the generally understood sense of that term, namely, that it constitutes a measure or yardstick of universal application that can be relied upon to deliver a definitive result”. (at 239). “The important thing to remember, however, is that every case must be considered in the light of its particular facts and it is for the court or tribunal considering those facts to draw the appropriate inferences from them by applying the general principles which the courts have developed. That requires the exercise of judgment and analytical skills. In my view it is simply not possible to arrive at the correct result by ‘testing’ the facts of the case in some rigid formulaic way.” “It was incorrect [of the EAT] to assert that questions of control and integration are to be regarded merely as elements to be taken into account in applying the enterprise test. They are not. Like the question of enterprise, questions of control and integration may also provide a court or tribunal with valuable assistance in drawing the appropriate inferences. All potential aids to the drawing of the appropriate inferences from the primary facts as found stand in their own stead, and no one is subsumed by the other. Moreover, those mentioned do not represent an exhaustive list. There could be other factors that might also assist… It is for a court or tribunal seized of the issue to identify those aids of greater potential assistance to them in the circumstances of the particular case and to use those aids appropriately.” Louise O’Byrne: Mutual Obligation: Minister for Agriculture and Food v Barry ([2008] IEHC 216), Edwards J. discussed the importance of mutuality of obligation in determining employment status. In this case, the Minister contended that the claimants, who were veterinary inspectors, were independent contractors. The claimants asserted employment rights in the context of seeking redundancy and notice payments. “The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract *12 at all or whatever contract there is must be a contract for services or something else, but not a contract of service”. Barry & Ors v Minister for Agriculture and Food [2015] IESC 43 (Supreme Court) “It is correct to note, however, as was noted by Edwards J, that there is no universal test whereby it may be said that if a particular indication is met or not met that person is employed or not. Furthermore, it may need to be factored into any such analysis that it can be that a course of dealings over years may turn from what was initially the engagement of self-employed contractor to do work on a particular basis into an employment relationship.” Other Important Factors Degree of control by the ‘employer’. Degree to which the worker risks loss/stands to gain from profit. Degree to which the worker’s work is an integral part of the business. Regularity method of payment. Regularity of hours. Ownership of tools and equipment – McAuliffe v Minister for Social Welfare [1995] 1 ILRM 189 McAuliffe v Minister for Social Welfare [1995] 1 ILRM 189 Appeal against the decision of the social welfare officer who deemed that the two delivery men were under a contract of service. Appellant was a wholesale distributor of newspapers. Case concerned whether two delivery men were employees or independent contractors Both worked 5-7 days per week. Both paid monthly on foot of submitted invoices based on daily rates of remuneration. Both owned their vehicles which they drove & were responsible for any driving expenses. Could engage substitute drivers (whom they would pay) but they had to get approval from the wholesale distributor. Free to carry goods for other employers but not at the same time as this wholesale distributor Both made Schedule E returns – one driver was registered for VAT Both drivers were responsible for any damage to the goods carried and for any delays High Court reversed the social welfare officer’s decision on appeal. Other Important Factors – Mutuality of Obligations Whether there is a mutuality of obligations - Minister for Agriculture and Food v Barry [2009] 1 IR 215 at 230: “The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service. It was characterised in Nethermere (St Neots) Ltd. v. Gardiner [1984] I.C.R. 612 at p. 632 as the "one sine qua non which can firmly be identified as an essential of the existence of a contract of service." Moreover, in Carmichael v. National Power plc. [1999] I.C.R. 1226 at p.1230 it was referred to as "that irreducible minimum of mutual obligation necessary to create a contract of service". Accordingly, the mutuality of obligation test provides an important filter. Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation it is not necessary to go further: whatever the relationship is, it cannot amount to a contract of service. However, if mutuality of obligation is found to exist, the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further.” Mansoor v Minister for Justice, Equality & Law Reform [2010] IEHC 389 – Louise O’Byrne – Lavan J. considered the status of the Mr Mansoor who provided medical services to An Garda Síocháná in respect of taking urine samples from prisoners facing charges of driving under the influence of alcohol. Lavan J. held that mutual obligation was not satisfied in this case. The defendants were not obliged to give the plaintiffs work, and the plaintiffs could declare that they were unavailable. He could face no sanction or rebuke from the defendants. McKayed v Forbidden City Ltd [2016] IEHC 722 – unfair dismissal claim – question whether he was an employee or independent contractor: “…the fact that work was given regularly for a period of time is not determinative of whether one party had a legal obligation to provide the other party with work.” Other Important Factors: Ability to provide a substitute (e.g. ability to delegate the performance of a contract). The terms used by the parties – courts will consider the substance and not the form Millen v Presbyterian Church in Ireland [2000] ELR 292 Henry Denny & Sons (Ireland) Ltd. trading as Kerry Foods v. Minister for Social Welfare [1998] 1 IR 34 Louise O’Byrne - The right to use substitutes is another feature that will be examined in determining employment status. In the case of Castleisland Breeding Society Limited v Minister for Social and Family Affairs ([2004] IESC 40), the Supreme Court concluded that the inability to use substitutes without the approval of business was not fatal to a finding that an individual is a contractor rather than an employee. - In summary, in determining the nature of the parties' relationship, the courts will take a holistic approach not confined to the written terms of the agreement between the parties. In conducting such an evaluation, the courts will look to the respective bargaining power of the parties and whether the written terms accurately record what was agreed (or whether one party effectively imposed a set of terms on the other). Although parties cannot themselves fix the status of their relationship in writing, the courts can look to the written categorisation of the relationship and decide that same is an accurate reflection of the relationship in reality, and as such, the written agreement may be determinative of parties' relationship. Employee or Independent Contractor? Millen v Presbyterian Church in Ireland [2000] ELR 292 Employment Appeals Tribunal determined that a minister of the Presbyterian Church of Ireland was not an employee within the meaning of the Terms of Employment (Information) Act 1994. Tribunal stated that the Church does not make appointments but rather the particular congregations of which the Church is made up. Issue of a P60 to the minister did not determine the employment relationship regardless of the use of the descriptions ‘employer’ and ‘employee’. Tierney v An Post [2000] - Plaintiff was a sub-postmaster. He provided his own premises, his income was performance-based and he employed an assistant. Respondent dismissed the employee under his statutory powers. Tiernay challenged this decision. Respondent argued that Tiernay was not an employee. In the High Court, McCracken, J. referred to the control test, integration test and the decision in Denny. High Court held that it was a contract of service. Appeal to Supreme Court – held to be a contract for services – looked to other factors e.g. postmaster supplied his own premises, could employ others to assist in business & was taking on the risks of profit & loss in a business. Atypical employment: Employment (Miscellaneous Provisions) Act 2018 Part-time and casual work o Directive 97/81 Framework Agreement on part-time work o Protection of Employees (Part-time Work) Act 2001 Fixed-Term Work o Directive 99/70 framework agreement on fixed term work o Protection of Employees (Fixed-Term Work) Act 2003 Agency Work o Directive 2008/104 on temporary agency work o Protection of Employees (Temporary Agency Work) Act 2012 Gig economy – UK case law Louise O’Byrne: Engaging services through what has become widely known as the “gig economy” has become increasingly popular in recent years. So, what is the gig economy? It can be described as a working environment that offers flexibility with regard to hours of work, or, in the alternative, a form of exploitation with little or no workplace protection. People who work in the gig economy have agile/flexible jobs instead of (or as well as) more traditional full-time jobs. Instead of a salary, workers get paid for the “gigs” they do, such as food delivery or a taxi journey. It is estimated that some five million people are employed in the gig economy in the UK. In Ireland, it is reported that some 5 per cent of the workforce have constantly varying hours of work (J. O'Connell, “We're Working but we're not Employed”. Benefits include flexibility and control over how they work but “Gig economy” working has sparked plenty of debate recently, with low-paid work, zero hour contracts and reports of workers being exploited and denied rights and entitlements that many would argue they are entitled to enjoy. Minister for Employment Affairs and Social Protection published the Employment (Miscellaneous Provisions) Bill 2017: “An Act to provide for a requirement that employers provide employees with certain terms of employment within a certain period after commencing employment; to impose sanctions for certain offences; to further provide for a minimum payment due to employees in certain circumstances; to prohibit contracts specifying zero as the contract hours in certain circumstances and to provide for the introduction of banded contract hours; to further provide for prohibition of penalisation” Autoclenz Ltd v Belcher [2011] UKSC 41 – landmark UK Supreme Court case that deemed the claimants to be workers within the meaning of the applicable UK employment regulations Louise O’Byrne commentary - In practice, in this area of the law, it may be more common for a court or tribunal to have to investigate allegations that the written contract does not represent the actual terms agreed and the court or tribunal must be realistic and worldly wise when it does so. So the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem. If so, I am content with that description.” Pimlico Plumbers v Smith [2018] UKSC 29 Uber BV v Aslam [2018] EWCA Civ 2748 – UK Court dismissed Uber’s appeal of Employment Tribunal decision Aslam v Uber BV [2017] I.R.L.R. 4 (UK Employment Tribunal) – Uber drivers deemed to be workers for the purposes of applicable UK employment legislation regarding employment rights, working time and minimum wage. Dewhurst v City Sprint (2202512/2016) - (UK Employment Tribunal) Independent Workers' Union of Great Britain (IWGB) v Roofoods Limited T/A Deliveroo (2017 WL 05632856) – (UK Central Arbitration Committee decisions). Louise O’Byrne: The Uber Saga - The Uber Saga The case of Aslam v Uber BV ([2017] I.R.L.R. 4) has been one of the more high profile cases to come before the Employment Tribunal in London. The Tribunal, when tasked with making a decision on the employment status of Uber drivers, concluded that Uber drivers are workers for the purposes of the UK's Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998. At the time of the hearing, there were some 30,000 Uber drivers operating in the London area and 40,000 in the UK as a whole. The underlying claims related to unlawful deductions from wages (through an alleged failure to pay the national minimum wage) and in respect of a failure to provide paid leave. In this case, the Tribunal analysed Uber's business model and forensically assessed the terms between Uber and the driver, including a welcome packet used for “onboarding” new drivers. The Tribunal went on to make the following findings of fact: • Drivers are not required to make any commitment to work. However, when a driver signs into the app, this usually signals that they are coming ‘on-duty’ and available for work. • Drivers supply their own vehicles and are responsible for all running costs, including the licence costs. • Passengers book trips through the Uber app. On receipt of a passenger request, the app locates a driver logged into the app. The selected driver has 10 seconds to accept the booking through the app, failing which Uber assumes that they are unavailable and locates another driver. • If a driver fails to accept a series of bookings, this can result in losing his account status. Acceptance statistics are recorded and Uber warns, “you should accept at least 80% of trip requests to retain account status.” • Once a driver accepts a booking, Uber places the driver and passenger in direct contact, through the app. • The driver is not made aware of the destination until collecting the passenger. The app provides detailed directions to the destination and the driver is expected to follow those directions unless the passenger stipulates a different route. • At the end of the trip, Uber's servers calculate a recommended fare, based on GPS data from the driver's phone. The driver cannot negotiate or agree a higher fare. • The passenger pays the fare directly to Uber, via the app. Uber subsequently pays drivers, weekly in arrears, in respect of the fares they have earned, minus a “service fee” of 20 per cent to 25 per cent for connecting the driver to the passenger through the app. • Uber operates a rating system. If a driver falls below a set average rating Uber can withdraw the driver's access to the Uber app (effectively preventing him or her from being an Uber driver). • Uber takes the risk in some matters such as certain passenger fraud. • Uber deals with any fare complaints, often without requesting any comment from the driver. • Drivers are not required to wear any uniform and are not permitted to display the Uber logo in the London area. - - The Tribunal commented on the remarkable lengths to which Uber had gone to compel agreement with its description of itself and the analysis of its legal relationship with drivers. The Tribunal noted that Uber had previously made numerous comments in “unguarded moments” outside the case before the Tribunal, which ran contrary to the case it presented before the Tribunal. One example cited by the Tribunal was written evidence given to the Greater London Authority Transport Scrutiny Committee by Uber where it had referred to drivers receiving “commission”. The Tribunal was satisfied that this reinforced the claimant's simple case that Uber runs a transportation business and employs drivers to that end. Uber's case was that it is a technology platform providing business opportunities for drivers. The Tribunal was not convinced by this and concluded that it was “unreal to deny that Uber is in business as a supplier of transportation services” and contrived to regard Uber as working for the drivers. The contract between Uber and the drivers was not considered to be at “arm's length between two independent business undertakings”. The notion that Uber in London is a mosaic of 30,000 small businesses linked by a common platform was, in the Tribunal's mind, “ridiculous”. In light of the above findings, the tribunal concluded that the drivers are workers of Uber for as long as the driver: • has turned on the app; • is ready and willing to accept fares; and • is in the territory in which they are authorised to drive. The Uber Appeal: Uber appealed the decision of the employment Tribunal to the Employment Appeals Tribunal (EAT). The appeal was dismissed on the grounds that Uber drivers could not accept fairs from another private hire operator and that they must accept 80% of their fairs when on duty. This creates a mutuality of obligation. Uber sought to bypass the Court of Appeal and go straight to the Supreme Court. This request has been rejected Uber: The European Angle: Advocate General Szpunar gave an opinion on the boundaries of the gig economy in employment law. Szpunar concluded that Uber was engaged in the “supply of transport which is the main supply, and which gives the service economic meaning.” The CJEU delivered a judgment in 2017 arising from a referral from Spain. The primary issue to be answered was if uber journeys should be qualified as a service in the field of transport or as an information society service. The CJEU concluded that Uber was; “intermediation service … the purpose of which is to connect, by means of a smartphone application and for remuneration, nonprofessional drivers using their own vehicle with persons who wish to make urban journeys, must be regarded as being inherently linked to a transport service and, accordingly, must be classified as ‘a service in the field of transport’”. The importance of this decision is that Uber is subject to EU regulation as it relates to the transport sector. It should be noted that there are no common rules at EU level covering the type of services provided within Uber's business model and, as such, Member States enjoy a wide margin of discretion in regulating the conditions under which these types of services can be provided. City Sprint: In Dewhurst v City Sprint (2202512/2016) - considered if a bike courier was a worker under the Employment Rights Act 1996 s.230(3), rather than being self-employed, and was therefore entitled to paid annual leave. The Tribunal placed significant emphasis on the nature of the control exercised over Ms Dewhurst in arriving at its decision. It was concluded she was a worker; • Citysprint had the power to regulate the work available. • Ms Dewhurst could not improve her business opportunities through additional efforts. • There was an inequality of bargaining power. • The ability to appoint substitutes was inoperable due to the insurance provisions that Ms Dewhurst has obliged to fulfil thus rendering the right to substitute a sham. • Ms Dewhurst had little autonomy to determine the manner in which the services were performed and no chance at all to dictate its terms. • Ms Dewhurst was described as a “worker in a subordinate position … [and] a typical example of the protection needed from the Working Time Directive”. Conclusion: What does all of this mean? It has been well canvassed that in determining employment status each case has to be assessed by reference to its own facts and that a number of factors will be looked at such as personal service, control, integration, mutuality of obligation and financial risk. It would appear that some factors, where they can be demonstrated with certainty can be definitive—or at least provide a greater degree of certainty—in arriving at an assessment in terms of employment status. These are mutuality of obligation and substitution. Paying lip service to these factors will not cut it and a factual analysis of what is happening or is capable of happening on the day-to-day basis within the confines of the contractual relationship will be required. Where it can be genuinely established that there is no mutuality of obligation then this should, in the main, be sufficient to characterise the relationship as that of a contract for service. If the question of mutuality is blurred, then the other factors have to come into play. Similarly, where there is no requirement to provide personal service this, by and large, indicates an equality of bargaining power that has been absent from many of the cases analysed above. The recent UK decisions build usefully on the relatively extensive jurisprudence that exists in this jurisdiction on employment status generally. They do not, in the writer's view, represent a significant departure from any of the current principles already enshrined in the jurisprudence of this jurisdiction. Other categories of employees: Office holders: o ‘a position or place to which certain duties are attached, especially of a more or less public character; a position of trust or authority or service under constituted authority; a place in the administration of government, the public service the direction of a corporation, company, society etc.’ Apprentices The Public Service. Persons beyond retirement age; under aged workers; illegal employment; persons employed by a close relative.
