REWARD
Abuse, status, last-straw
NicolaMullineux, senior employment specialist for Peninsula , reviews the decisions in three cases
Bridges v Yodel Delivery Network In this case, the European Court of Justice (ECJ) assessed whether a gig-economy worker who was able to provide substitutes when doing work for an organisation could still be classed as a ‘worker’ and not ‘self- employed’. UK law outlines that individuals classed as ‘workers’ are those who perform services personally for an organisation which is not considered their client or customer. In contrast, self-employed individuals are those who provide services for their own account by running their own business, hiring their own workers and providing their own equipment. European Union (EU) law outlines that an essential part of an employment relationship is that the individual performs work or services for, and under the direction of, an organisation. Upon commencement of his role as a parcel courier for Yodel, Mr Bridges signed a contract that specifically labelled him a ‘self-employed contractor’. He was able to use his own vehicle and phone, did not wear a uniform or display any other form of branding despite using a Yodel-branded hand-held scanning device and, crucially, could provide a subcontractor to perform all or part of his services. He could also
...ensure that the relationship with a contractor does not stray into ‘worker’ territory...
provide his services to other organisations. The claimant later argued that he should actually be considered a ‘worker’, not ‘self- employed’ as he had never substituted his services or made deliveries for other organisations. In a preliminary hearing, the employment tribunal (ET) found that his ability to provide substitutes was ‘fatal’ to his claim under UK law, as was his ability to undertake work for other organisations. However, they noted that this may have been incompatible with EU law and therefore asked the ECJ for further clarity. The ECJ explained that EU law needed to be interpreted as precluding a person engaged by an organisation from being classified as a ‘worker’ when that person is afforded discretion: ● to use subcontractors or substitutes to perform the service which they have undertaken to provide ● to accept or not accept the various tasks offered by their putative employer, or unilaterally set the maximum number of
those tasks ● to provide their services to any third party, including direct competitors of the putative employer, and ● to fix their own hours of ‘work’ within certain parameters and to tailor their time to suit their personal convenience rather than solely the interests of the putative employer. Looking at the specific facts of this case, the ECJ noted that the claimant had a great deal of latitude as he had the right to say no to work and to work for competitors. The ECJ therefore concluded that whilst it was for the domestic court to determine the employment status of the claimant, there did not appear to be a ‘relationship of subordination’ between him and Yodel. It is always important for employers to ensure that the relationship with a contractor does not stray into ‘worker’ territory; as seen here, labelling an individual ‘self-employed’ will not automatically mean this is the case if the actual relationship is different. BDW Trading Limited v Kopec In this case, the employment appeal tribunal (EAT) ruled that the ET had erred by finding an employer had harassed an employee despite also finding its officers had not been motivated by discrimination. Under the Equality Act 2010, direct discrimination occurs where a person is treated, or would be treated, less favourably ‘because of’ a protected characteristic compared with others in
| Professional in Payroll, Pensions and Reward | July/August 2020 | Issue 62 42
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