This week the Supreme Court heard the final appeal in the long running case of Pimlico Plumbers Limited and Mullins –v- Smith. It has attracted much comment in the main stream media and has been portrayed as a game changer in the world of employment law. It has also been said to be about the gig economy, but it is neither.
To recap, Gary Smith was a plumber who worked for Pimlico Plumbers for six years. He was VAT registered and paid tax on a self-employed basis but despite these factors, he was heldby the Supreme Court to have worker’s rights and to be entitled to holiday and sick pay.
Mr Smith had entered into a contract to provide services to Pimlico Plumbers, which stated that he was an independent contractor, that he was under no obligation to accept work from the company and that it was not obliged to offer him work. He was, however, required to complete a minimum of 40 hours work per week. He also had to drive a company branded van, which had a tracker in it, to wear a company uniform and to carry a company identity card. He had to provide his own materials and tools and he also took a commercial risk that if the customer did not pay, then he would not be paid either. He also had a qualified right to provide a substitute for himself in that if he was unable to work, he could ask someone else (but only from the company) to provide cover.
It had been held by the Employment Tribunal that he did not have employment status, but he did qualify as a Worker and the Court of Appeal agreed with that. A Worker is a hybrid category of person that has some employment rights, but not as many as an employee. The matter should probably have ended there but, perhaps surprisingly, the Supreme Court decided to hear the appeal. In doing so, they dismissed Pimlico Plumber’s appeal because the right of substitution was little more than just an opportunity to swap shifts with another company operative. Although there were many features of the relationship between the parties that pointed to an independent contractor status, the fact of the matter was that Pimlico Plumbers exercised very tight control over Mr Smith’s activities, the pay arrangements and also the fact that he was required to enter into restrictive covenants with Pimlico Plumbers governing his activities after the engagement ended.
This case does not change the law; neither does it provide any further assistance to workers in the so called gig economy. Pimlico Plumbers are not a gig economy company. The Supreme Court could have used this case as an opportunity to clarify the law or to move it on as without doubt this is a complicated area that has given rise to a number of high profile claims, some of which are involving the gig economy. Cases on employment status are always fact specific so the upshot of the whole case is really: “as you were”.