Self-employed plumber actually a 'worker,' court rules

A plumber from Kent is the latest individual to convince a court that despite being taken on as a self-employed freelancer, he was really a ‘worker’ deserving of greater protections.

So regardless of his VAT-registration, self-employed tax payments and self-provision of tools, Gary Smith, who started for Pimlico Plumbers in 2005, is owed basic statutory rights.

Handed down on Friday, this ruling by the Court of Appeal puts the London-based company in the same position as ride-hailing app Uber, and courier firms Deliveroo and CitySprint.

In fact, all four have now heard from judges that while they afforded very few rights to the person who claimed against them, that person’s working practice is proof they deserve more.

In Mr Smith’s case, the expectation he would do the work personally and his lack of an absolute right to send a substitute instead of him were central to determining his ‘worker’ status.

He was therefore entitled to paid holiday rights and the right to bring a claim for disability discrimination -- at odds with an earlier employment tribunal which said he could not make a claim because he did not have ‘employee’ status.

The CoA now vindicating Mr Smith, notably as a worker entitled to basic protections, could have implications for other individuals who are hired as freelancers, but later feel they should have more rights than such genuinely self-employed status affords.

However in its judgement the court cautioned employment lawyers, saying they “should be careful about trying to draw any very general conclusions from it.”

But the three other recent court rulings of this type -- all in favour of the individual who brought the case and against the outfit who engaged them, make it difficult to resist drawing some.

Stuart Neilson, partner at law firm Pinsent Masons said: “[There is a] clear trend emerging that businesses that set themselves up to provide services or goods and make use of casual workers are likely to have an uphill battle to persuade tribunals that such individuals are not workers”.

Also speaking to the firm’s Outlaw.com about the ruling, Pinsent Masons’ senior associate Chris Thomas alerted employers to next month’s Budget 2017, saying it might now contain announcements on worker status and rights.

The lawyer’s alert appears to relate to Matthew Taylor’s review of modern employment practices, which launched in October to probe issues including the status of individuals working in the gig economy.

One of the likely respondents to the review, the Trade Union Congress, said that Friday’s ruling against Pimlico Plumbers (the company is reportedly considering an appeal), has exposed “sham self-employment.” The TUC denounced it as a growing problem.

“Unscrupulous bosses falsely claim their workers are self-employed to get out of paying the minimum wage and providing basics like paid holidays and rest breaks,” said the union’s Frances O’Grady. “The government must crack down on these shady employment practices by beefing up the law.”