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UK HR E-briefing: Courier company loses worker status appeal

  • United Kingdom
  • Employment law - HR E-Brief

11-05-2018

The Employment Appeal Tribunal (EAT) has today rejected an appeal by courier company Addison Lee against a tribunal decision that one of its cycle couriers was a ‘worker', entitled to paid holiday.

Addison Lee had challenged the Employment Tribunal’s ruling that, during the period when the claimant was logged on to the company’s app, there was a contract with mutual obligations for 'jobs' to be offered and accepted. The company’s main ground of appeal was that, on the facts found by the tribunal, there was no basis for concluding that the claimant was actually under any legal obligation to accept jobs offered to him when logged on: he was completely free to decide not to accept any jobs and entitled to log on or off the app at will. Therefore, the company said, the claim should have failed because an individual cannot be classed as a ‘worker’ unless they are under some contractual duty to do at least some work.

The EAT’s rationale for dismissing that argument was essentially as follows: the tribunal had clearly concluded that, from the time the claimant logged in, both sides expected that he was available for work, would be provided with it and that he would carry it out as directed by the controller; although ‘expectations’ are not the same as contractual obligations, past cases have made it clear that the established practice and expectations of parties to workplace relationships can, over time, crystallise into legal obligations and that is what the tribunal found had happened in this case; it followed that there was a contractual duty on the claimant to accept jobs (and on the company to offer them).

It is not yet clear whether the company is planning to ask for permission to take this case to the Court of Appeal, which is already due to consider the Uber appeal at the end of October. Even if today’s ruling goes unchallenged, there is some scope for other employers facing similar claims to argue that this line of reasoning applies only to those with significant periods of service. The claimant in this case had worked for the company for several years and it is clear that the longer an individual works for an organisation, the more willing a tribunal will be to accept that the parties’ expectations have hardened into legal obligations. In contrast, those with short service will find it harder to establish a legal obligation to work if the written contract terms deny any such duty exists and the employer does not operate in a way that contradicts the written terms. In such circumstances it may be that a short-service worker could still establish that they are a ‘worker’ during times they are actually carrying out jobs, rather than throughout the time they are available for work; but then they will be unable to argue that they are entitled to be paid the minimum wage during time spent waiting for jobs to be offered (as in the Uber case).

Addison Lee v Gascoigne, Employment Appeal Tribunal, 11 May 2018

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