REWARD INSIGHT
Worker status, disability and holiday pay
Nicola Mullineux, senior employment specialist for Peninsula, reviews decisions in three cases
Gascoigne v Addison Lee Ltd The Employment Tribunal (ET) has dealt with yet another case of an employer engaging individuals as ‘self-employed independent contractors’ who are asserting that the reality of their working relationship lifts them into different category of employment status. As is fast becoming the norm, the tribunal found that the individual involved was in fact ‘a worker’ entitling him to various employment rights. In Gascoigne v Addison Lee Ltd, the claimant signed a contract in March 2008 which he then re-signed every three months. The last contract, dated 20 October 2015, which referred to Gascoigne as an ‘independent contractor’, stated “choose the days and times when you wish to offer to provide the Services” and that there was no mutuality of obligation. The contract also contained a penalty clause designed to put the courier off challenging their employment status at tribunal. Addison Lee supplied Gascoigne with a radio and palm top computer; a book of receipts; branded bag and t-shirts and an Addison Lee ID. They also provided him with insurance against loss or damage to parcels
which he paid for through a small weekly charge. ...the contract of October 2015 did not portray the relationship correctly When Gascoigne was ready to work, he would contact the controller by phone or radio and log on to the system. They would keep in constant contact and the controller could track the courier through GPS (global positioning satellites). The controller decided the order of the jobs which would be done and the couriers were reprimanded if they did not deliver the item within an hour. In between jobs the courier was on standby in an area approved by the courier. The courier could only refuse a job in exceptional circumstances and there was no ‘decline’ button integrated into the online system. Couriers were paid a piece rate, waiting time if they had to wait for a job, and a
bonus payment if they did seventy or more jobs in a week. If a job was cancelled, or the customer failed to pay, Gascoigne would still be paid. The tribunal found that the contract of October 2015 did not portray the relationship correctly. The true relationship is that Addison Lee and Gascoigne work together in a team under a contract whereby Gascoigne was expected to carry out work for Addison Lee under its direction when logged in to the system. Further, Gascoigne performed work personally especially due to the need for DBS (Disclosure and Barring Service) clearance and the lack of a right to substitute. In finding Gascoigne to be a ‘worker’, the tribunal took into account: ● the fact that he did not negotiate a contract with Addison Lee ● when logged on, he was controlled by the controller ● the claimant worked flexibly but, because he was not running his own business, this did not affect his income or Addison Lee’s ● having full accounts backup, assistance with tax returns and receiving a payslip showed that he was not running his own
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| Professional in Payroll, Pensions and Reward | October 2017 | Issue 34
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