The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s appeal failed. Mr Smith was a worker: ‘there were features of the contract which strongly militated against recognition of Pimlico as a client or customer of Mr Smith. Its tight control over him was reflected in its requirements that he should wear the branded Pimlico uniform; drive its branded van, to which Pimlico applied a tracker; carry its identity card; and closely follow the administrative instructions of its control room. The severe terms as to when and how much it was obliged to pay him, on which it relied, betrayed a grip on his economy inconsistent with his being a truly independent contractor. The contract made references to ‘wages’, ‘gross misconduct’ and ‘dismissal’. Were these terms ill-considered lapses which shed light on its true nature? And then there was a suite of covenants restrictive of his working activities following termination.’
Lord Wilson observed that: ‘The sole test is, of course, the obligation of personal performance: any other so-called test would be an inappropriate usurpation of the sole test. But there are cases, of which the present case is one, in which it is helpful to assess the significance of [the claimant] Mr Smith’s right to substitute another Pimlico operative by reference to whether the dominant feature of the contract remained personal performance on his part.’
Judges:
Lady Hale, President, Lord Wilson, Lord Hughes, Lady Black, Lord Lloyd-Jones
Citations:
[2018] UKSC 29, [2018] ICR 1511, [2018] WLR(D) 357, [2018] IRLR 872, [2018] 4 All ER 641, UKSC 2017/0053
Links:
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video
Statutes:
Employment Rights Act 1996, Working Time Regulations 1998
Jurisdiction:
England and Wales
Citing:
At EAT – Pimlico Plumbers Ltd and Another v Smith EAT 21-Nov-2014
EAT Contract of Employment : Whether Established – WORKING TIME REGULATIONS – Worker . .
Appeal frrom (At CA) – Pimlico Plumbers Ltd and Another v Smith CA 10-Feb-2017
The plumbers appealed against a finding that the plumbers it employed were workers and entitled toassociated benefits.
Sir Terence Etherton MR summarised the case law and said: ‘ I would summarise as follows the applicable principles as to the . .
Cited – Express and Echo Publications Limited v Tanton CA 11-Mar-1999
A contract for services, which required the contractor to provide an alternate worker in case of sickness, could not be a contract of employment. Such a clause could not be said to require the services to be provided personally.
Mr Tanton . .
Cited – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – Ready Mixed Concrete Southeast Ltd v Minister of Pensions and National Insurance QBD 8-Dec-1967
Contracts of service or for services
In three cases appeals were heard against a finding as to whether a worker was entitled to have his employer pay National Insurance contributions on his behalf which would apply if he were an employee. He worked as an ‘owner-driver’
Held: The . .
Cited – Allonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
Cited – Mirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
Cited – Rock Advertising Ltd v MWB Business Exchange Centres Ltd SC 16-May-2018
The parties disputed whether a contract (licence to occupy an office) had been varied by an oral agreement, where the terms prohibited such.
Held: The ‘no oral variation’ clause applied. Such clauses were in common commercial use and served a . .
Cited – Byrne Brothers (Formwork) Limited v Baird EAT 18-Sep-2001
EAT The Tribunal was asked whether the claimant was a worker within the meaning of the Regulations and so entitled to their protection in receiving holiday pay.
Held: The appropriate classification of a . .
Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – Secretary of State for Justice v Windle and Arada CA 12-May-2016
. .
Cited – Halawi v WDFG UK Ltd (T/A World Duty Free) CA 28-Oct-2014
The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her . .
Cited – Cotswold Developments Construction Ltd v Williams EAT 21-Dec-2005
EAT What is meant by ‘mutuality of obligations’ where the claim relies on the Working Time Regulations; whether finding that there was no mutuality of obligations was inconsistent with holding that the Claimant . .
Cited – FNV Kunsten Informatie En Media v Staat der Nederlanden ECJ 11-Sep-2014
ECJ Advocate General’s Opinion – Collective labour agreement – Contracts for professional services – Minimum fees – Competition – Article 101 TFEU – Prevention of social dumping – ‘Albany exception’
A Dutch . .
Cited – James v Redcats (Brands) Ltd EAT 21-Feb-2007
EAT National Minimum Wage
Who is a ‘worker’?
Was the Appellant who worked as a courier for the Appellant company, providing her own vehicle, a worker or home worker within the meaning of ss.54(3) and . .
Cited – The Hospital Medical Group Ltd v Westwood CA 24-Jul-2012
The Hospital Medical Group argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers, the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and the . .
Cited by:
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors did so as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Cited – Stuart Delivery Ltd v Augustine CA 19-Oct-2021
Obligation to Perfom Work Personally was Critical
This appeal concerns the status of a courier delivering goods by moped. The question on the appeal is whether an employment tribunal was entitled to find that the claimant, Mr Augustine, was a worker within the meaning of section 230(3)(b) of the . .
Cited – Barclays Bank Plc v Various Claimants SC 1-Apr-2020
The Bank had employed a doctor to provide medical assessments as necessary. The doctor had used the opportunities presented to assault sexually many patients. The court was now asked whether the Bank was vicariously liable for the acts of this . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 07 August 2022; Ref: scu.617857