the written agreements gave the impression he was in business on his own account.
The Claimant was paid against receipt of invoices, personally accounted for tax and was VAT registered. He was required to provide his own tools, equipment and materials and maintained his own insurance. Although required to work a minimum number of weekly hours, he could choose particular working hours and could reject particular jobs. Pimlico was under no obligation to provide work if none was available. In upholding the decision that he was not an employee, the EAT held the employment tribunal had been entitled to have regard to the Claimant's financial risk, the degree of autonomy as to quotations and how work was carried out. It was also of significance that both parties acted as though the Claimant was self-employed. The EAT also upheld the decision that the Claimant was a 'worker', largely because it was envisaged that he would provide personal service. It was reaffirmed that an unqualified right to provide a substitute negates personal service but that where prior consent to a substitute is required the right is not unfettered. There was no express provision which permitted substitution and, it was held, the most Pimlico Plumbers was willing to tolerate was a form of job-sharing or shift swapping without any legal obligation, which was insufficient to amount to an unfettered right of substitution.
Redundancy - Meaning of Place of Employment
16 January 2015
When employees lost the benefit of free parking near their homes, was this a place of work redundancy?
No, held the EAT in EXOL Lubricants v Birch .
Daniel Barnett’s employment law bulletin summarises the case.
The Claimants were employed as delivery drivers using HGVs. They lived in Manchester but the depot they had to attend to load up was situated in Wednesbury. Their employment contracts also stipulated that their place of employment was Wednesbury. Because of the cost of commuting, EXOL agreed to make available secure parking for the employees' HGVs in Stockport, near their homes. They would then drive from their homes to Wednesbury and the journey to and from Stockport was treated as part of their working day, for which they were paid. A time came when the company could no longer afford to pay for the secure parking in Stockport and so they gave notice to terminate this arrangement. The employer sought to argue that there was a fair reason for dismissal, namely redundancy, on the basis that Stockport was the Claimants' place of work rather than Wednesbury. It therefore argued that the employer had ceased to carry on business in the place where the employee was employed. The employment tribunal rejected this proposition. The employees' place of work was not Stockport, but Wednesbury, because that was where their working day began and ended. The EAT agreed . The proper test in determining where the employee is employed for the purposes of the redundancy provisions of the ERA is as follows. First, it is proper (but by no means conclusive) to have regard to a contractual provision. Secondly, it is appropriate to consider, depending on the facts of the case, any connection the employee may have with a depot or head office. Here, the employees' contractual place of work was at Wednesbury and, secondly, they had a close connection with the Wednesbury depot. There was therefore no redundancy situation at Wednesbury because the job and the need for people to do it remained. As the employer advanced no other potentially fair reason for dismissal, the
CIPP Policy News Journal
08/04/2015, Page 132 of 521
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