The Supreme Court upheld a decision by the Court of Appeal on his ‘worker’ status
The Supreme Court has ruled that an employment tribunal was “entitled to conclude” that a self-employed plumber, who brought a case against his former employer, was a ‘worker’ and therefore entitled to workers’ rights.
Gary Smith had worked solely for Pimlico Plumbers from August 2005 to April 2011, but was VAT-registered and paid self-employed tax. He was required to wear the company’s branded uniform, carry a company ID card, lease and drive a van bearing the company’s livery and work a minimum number of hours per week.
"The Supreme Court's decision shows that there are limits to a business model which seeks to avoid workers’ rights.”"
Pimlico Plumbers maintained he was an independent contractor and had no obligation to accept work. He also bore some of the risks since Pimlico only paid him when he was paid by the customer and if the customer was late payment to him was halved. He got nothing if the customer was late by six months. Yet he was required to wear the branded Pimlico uniform, drive its branded van which had a tracker, carry an ID card and follow Pimlico's administrative procedures. To that extent Pimlico Plumbers maintained a significant level of control over him.
Following a heart attack in January 2011, he sought to reduce his working week from five to three days which was refused. Mr Smith was subsequently dismissed on 3 May 2011 and he brought claims in the employment tribunal amongst other things for unlawful deduction form wages, holiday pay and disability discrimination.
The tribunal held that he was a worker and could therefore pursue his claims for unlawful deductions from wages, holiday pay and disability discrimination. Pimlico Plumbers appealed. The Court of Appeal upheld the tribunal's finding that Mr Smith was a worker. The Supreme Court’s ruling upholds that decision.
Jo Seery, of Thompsons Solicitors, commented: “This is an important decision and part of a growing line of authorities where the courts are prepared to find that independent contractors are workers and therefore entitled to important employment rights such as holiday pay.
“What is interesting about the Supreme Court’s decision is that the contract made clear that Mr Smith was being contracted for his skills, so the important feature of a workers contract, namely the obligation to provide personal service, was made out and could not be undermined by a limited ability to appoint another Pimlico Plumber to do the job instead.
“The Court also rejected Pimlico Plumbers’ argument that Mr Smith was their client or customer because of the tight control Pimlico Plumbers had over him. The Court of Appeal was critical of a business model which sought to maintain that Mr Smith was an independent contractor whilst at the same time giving customers the impression that he worked for the business. The Supreme Court's decision reinforces that view and shows that there are limits to a business model which seeks to avoid workers’ rights.”
His case will now finally return to the tribunal to determine his claims for wages, holiday pay and discrimination.