The status of the term “worker” has been in the news a great deal recently.
Whilst employers and their HR and legal advisers wait to see what may emerge from the debate regarding the “gig” economy, the Employment Tribunal continues to determine questions relating to employment status.
This week, the tribunal was asked to determine the employment status of drivers in the case of Lange, Olszeski and Morahan v Addison Lee Limited, specifically in relation to whether they were workers or self-employed.
The tribunal settled overwhelmingly on the side of the Claimants in relation to their status as workers of the Respondent Company.
In this case, the Claimants were drivers, retained to provide services to customers arranged through the Company.
In confirming the Claimants’ status as workers, the Employment Tribunal highlighted a number of factors that had contributed towards its decision, which we have listed below.
However, it should be noted that each case as to the status of workers, employees or self-employed persons is likely to turn on its own individual factors.
Points For Worker Status
- The Company asked each of the drivers to enter into written agreements with it and had significant control over what the drivers did once they had logged on to an XDA device that provided details of the customers to be attended to.
- The Company attempted to argue that work may not have been available once a driver had logged on to the XDA device. However, the tribunal noted that, even though this could be the case, the driver would still be ready and willing to perform work for the Company, regardless of what the driver was doing whilst he or she was waiting for that work to be provided.
- The Company set the level of fares to be accepted and, indeed, these fares could be paid directly to the Company with no obligation on the drivers to accept cash payments from customers at all. When the drivers did accept cash payments from customers, they were accountable to the Company for these payments.
- The Company asked drivers who did not provide their own vehicles to enter into vehicle hire agreements with it. These vehicles were branded with Company logos and, at the end of the agreement between each driver and the Company, the vehicles provided by the Company would be returned to it. The Company also retained responsibility for the maintenance of these vehicles during the course of the agreement. Additionally, drivers were not permitted to change the use of or to otherwise modify the vehicles that they used.
- If the drivers incurred parking tickets and/or fines for traffic infringements, the Company would deduct those costs from the payments that it made to the respective driver for his or her services. The relevant driver would not have a right to appeal this decision.
- Each driver would be responsible for informing the Company of any planned holidays. If a driver failed to do so or, alternatively, if a driver remained logged out of his or her XDA device for a period of four days or more then the Company would contact the driver to ask why this was the case.
- Drivers had an element of control over when they could accept customers as, if they notified the Company that they were heading home, but did not log out of the XDA device, they could still pick up fares on their way home. However, these fares would still be arranged through the Company. The option to return home would also only be available to the drivers after they had completed four hours of work.
- The Company could charge its drivers if they failed to complete a set level of work.
Points Against Worker Status
- On the face of it, the drivers could choose whether or not to accept work from the Company simply by not logging in to the XDA device in the first place. However, the tribunal noted that the absence of a mutual obligation to perform the work provided did not go against the argument that the drivers were workers (see also the point in relation to failure to log in to the XDA device above).
- Drivers had an element of control over when they could accept fares as, if they notified the Company that they were heading home, but did not log out of the XDA device, they could still pick up fares on their way home (however, see also the point in relation to accepting customers on the way home above). Alternatively, a driver could simply log out of the XDA device and not accept further customers.
- Drivers could venture in to different areas where there were likely to be customers if the were no customers in their own area. However, the Company was still responsible for allocating these customers and setting the level of fares without consulting with the drivers.
- If the drivers were, indeed, workers, then this could pose problems for the way in which the Company ran its business.
It is noticeable that this case relied heavily upon the control that the Company exercised over its drivers, which was a clear indication of their status as workers.
In relation to the Company’s point that a change from self-employed to worker status for its drivers may place undue pressure on the business itself, it is notable that the response from the tribunal was simply that “changes to [the Company’s] systems and procedures might be necessary”.
However, we must point out that this case is not determinative of all employment status issues. Ultimately, each case concerning employment status is likely to turn on its own facts.
This article is not a substitute for legal advice on specific facts and circumstances. It is designed as a free update on the law at the time of publishing. Knight Polson Limited trading as QualitySolicitors Knight Polson accepts no responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.
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