This month the Supreme Court handed down its eagerly awaited decision in (1) Pimlico Plumbers v (2) Mullins v Smith [2018] UKSC 29 ruling that a plumber who had been labelled as a self-employed contractor was actually a worker.

Workers do not enjoy the same rights as employees, whether that be in relation to unfair dismissal, maternity leave or redundancy payments, but it can pay to have “worker” status. Workers enjoy certain statutory rights which the genuinely self-employed do not, such as holiday pay, the National Minimum Wage and pension auto-enrolment.

The case concerned “limb b” workers, who unlike “limb a” workers do not have a contract of employment. Instead, “limb b” workers work under “any other contract…. whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual” (ERA 1996, s230(3)(b)).

One of the issues for the Supreme Court was the obligation on the plumber, whose contract provided for him being an independent contractor in business on his own account, to do the work personally. Here the Supreme Court reinforced existing authority that the requirement to perform personally does not prevent someone using an assistant or bringing in a specialist to carry out some parts of the work. Further, the significance of the right to substitute should be seen in the context of whether personal performance remains the dominant feature of the contract.

Some have suggested the Supreme Court had not gone far enough and that an opportunity was missed. For example, the boundaries of a right to substitute consistent with personal performance are still unclear. However with the continued growth of the gig economy and cases involving Uber and Deliveroo still making the headlines, it is likely that the Supreme Court will have further opportunities to add much needed clarification to these important employment status issues.

 

For further assistance or advice about the topics raised in this blog please contact our Employment Law Department on 01924 387 110 or click for a call back.


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