In this case Mr Smith was a gas electrician carrying out work solely for Pimlico Plumbers from August 2005. The contract said he was an independent contactor and Pimlico was not obliged to offer any work and Mr Smith was under no obligation to accept it. However, the company manual stated that he should work a minim of 40 hours per week. Further:
- He had to hire and drive a Pimlico branded van
- Wear a Pimlico uniform
- There was no express right to substitute
Mr Smith’s employment was terminated on 3 May 2011 and he made claims for failure to pay holiday pay, unlawful deductions and disability discrimination.
In the initial tribunal, the judge held he was a worker and an employee under the Equality Act. The EAT and the Court of Appeal agreed and dismissed Pimlico’s appeals.
The Supreme Court agreed and dismissed Pimlico’s appeal. The informal, internal right of substitution that did exist was only amongst existing Pimlico operatives and was therefore fettered by Pimlico.
The Supreme Court stated that there were a number of factors that enabled the tribunal to find that Pimlico was not customer or client of Mr Smith (and he was not an independent contractor). These included the bullet points stated above and the following:
- he had to carry an identity card and closely follow the administrative instructions of Pimlico’s control room
- the severe terms as to when and how much Pimlico was obliged to pay him
- the contractual referred to ‘wages’, ‘gross misconduct’ and ‘dismissal’
- the post termination restrictions which he was bound by.
Given this case’s journey through the appeal process, and the other cases on status since this case began, this outcome is perhaps not surprising. However, it highlights the need for clarity in this area of law.
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