As we blogged, back in August, Pimlico Plumbers (“Pimlico”) were granted the right to appeal to the Supreme Court against a finding that one of its plumbers was a worker and not self-employed. Now, the Supreme Court has spoken and, as expected, it has dismissed Pimlico’s appeal.
The claimant in this case was a plumber who had carried out work for exclusively for Pimlico from August 2005 to April 2011. Some of the relevant facts in the case were as follows:
- The claimant’s contract stated that he was self-employed and that there was no obligation for him to be offered (or to accept) work although the claimant was asked to let Pimlico know of days he would be unavailable;
- Notwithstanding the above, the company dictated that the claimant should work at least 40 hours a week;
- The claimant was contracted personally but had the right to swap his assignments with other Pimlico operatives;
- The claimant was registered for VAT and paid self-employed tax returns;
- The contract stated that the claimant would provide all equipment needed, however, he was given branded equipment and uniform by Pimlico.
- The contract referred to ‘wages’ ‘gross misconduct’ and ‘dismissal’ and contained a suite of restrictive covenants including non-compete and non-solicitation clauses.
The Supreme Court held that the tribunal had been entitled to conclude that the claimant was not self-employed. It also asked itself whether the right to swap assignments with another Pimlico operative was inconsistent with personal performance. It held it was not. It said the right to swap assignments was significantly limited as only those who were subject to Pimlico’s heavy obligations could be chosen. It was the ‘converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that work gets done’.
This decision is yet another in the trend supporting worker status for those engaged in the ‘gig economy’. It will surely be of interest to those facing similar claims at the moment. Further, it reinforces the need to carefully consider the substitution right in contracts with self-employed contractors; any caveats may well suggest personal service is a requirement.