The ‘gig economy’ (where people are engaged and paid by companies on a job-by-job basis) continues to generate headlines and give rise to cases in the Employment Tribunals. Hot on the wheels of the Uber case (which we reported on here) comes another employment status case this month. The case, Dewhurst v CitySprint UK Ltd, concerned a bicycle courier in London who, just like in the Uber case, was determined as a ‘worker’ and not a self-employed contractor as CitySprint claimed her to be.

Employment status generally concerns the issue of whether an individual is an employee, worker or self-employed individual. The determination of the issue may then have an impact on the rights available to that individual, with an employee having the most rights under employment legislation. A worker has less extensive rights, but does have some, such as the right to be paid National Minimum Wage, the right to paid annual leave, rights to rest breaks, and protection under discrimination legislation.

When an Employment Tribunal examines a case which has an issue about employment status, they will examine the contractual arrangements in place and the actual reality of the relationship between the parties. The Tribunal will make a decision taking into account many different factors, such as:

• Are there obligations to offer and accept work?
• Who controls the work and how it is done?
• Can the individual send someone else to do the work in their absence (a substitute)?
• Who pays tax and national insurance?
• How integrated is the person into the business?
• Are any benefits paid, such as sick pay or holiday pay?
• Does each party take on any financial risk?
• How long has the individual been engaged for?
• Can the individual work elsewhere?
• What type of relationship did the parties intend to have?

In this case against CitySprint, Ms Dewhurst had worked as a bicycle courier for the company for two years. The contract between Ms Dewhurst and CitySprint said she was an independent contractor. She was paid based on deliveries made. CitySprint directed her to each delivery job, made her wear their uniform, and even told her to ‘smile’ when making deliveries.

Ms Dewhurst raised a claim for two days’ of holiday pay; a claim which could only succeed if the Employment Tribunal found that she was either an employee or worker.

The Employment Tribunal examined the relationship between the parties and concluded that Ms Dewhurst was a worker. Therefore, she was successful in her claim for holiday pay. The Employment Judge was critical of the contractual arrangements put in place by CitySprint and said they were “contorted” and “window dressing”. The Judge said that CitySprint were the party with the power in the relationship, which demonstrated that this was not a commercial venture between a company and a self-employed contractor as alleged by CitySprint. Ms Dewhurst commented to the media that she spends “all day being told what to do, when to do it and how to do it. We’re under their control.”

The case was heard in the Employment Tribunal, so it is not binding on other Employment Tribunals unless and until the case goes to appeal. However, given other decisions in similar cases, it seems clear which way the gears are turning. The union who assisted Ms Dewhurst in her case are helping others bring claims against companies with similar arrangements, so we can certainly expect more judgments (and no doubt media headlines) in this area. Uber indicated that they intended to appeal the decision in their case, but as yet it is not known what the details are of any such appeal.

The Government is currently conducting a review of modern working practices to look into the implications of the 'gig economy'. It is estimated that there are some 5 million individuals working in the 'gig economy', and there have been some calls for individuals to be granted better protection. The report from this review is set to come out in July this year. This may make recommendations on how to offer more rights to gig workers, but as yet there is no indication what this may involve. We will, of course, continue to keep you updated through our ebulletins!

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.