Working Time Regulations – Holiday Pay – Worker – The Claimant was a cycle courier with the Respondent. The ET upheld his claim that he was a ‘limb (b) worker’ within the meaning of Regulation 2 of the Working Time Regulations (‘WTR’); and in consequence entitled to holiday pay thereunder. In doing so it held that the written terms of contract between the parties, describing G as an ‘independent contractor’, did not reflect the reality of the relationship; and that, during the period when G was ‘logged on’ to the Respondent’s app, there was a contract with mutual obligations for ‘jobs’ to be offered and accepted.
The Respondent appealed on two grounds.
First, that on the facts as found by the ET, there was no basis to conclude that G was under any legal obligation to work, i.e. to accept jobs offered to him when logged on. His decision whether or not to do so (as with his entitlement to log on or off at will) was a matter for his whim and fancy. Accordingly the claim must fail for lack of the necessary mutuality of obligation.
Further or alternatively, that the ET’s ‘multi-factorial assessment’ that G had the status of a ‘limb (b) worker’ was vitiated by factual error and should be remitted to another Tribunal.
The EAT rejected both grounds of appeal.
Citations:
[2018] UKEAT 0289 – 17 – 1105
Links:
Jurisdiction:
England and Wales
Employment
Updated: 22 April 2022; Ref: scu.616889