Tim Goodwin Profile picture
Jun 13, 2018 10 tweets 3 min read Twitter logo Read on Twitter
The #SupremeCourt has rejected Pimlico Plumbers' appeal. Significant #gigeconomy case on whether person is a 'worker' (entitled to holiday, discrim protection, etc) or a mere contractor (entitled only to the terms of their contract). supremecourt.uk/cases/uksc-201… #ukemplaw (1/10)
Having said it’s significant, there’s not an awful lot of new law in there. It’s largely significant because this is (I think?) the first time in the recent spate of gig economy cases that the Supreme Court has got involved. (2/10)
There is, however, one nugget of note. There seems to now be a ‘dominant feature’ test when considering whether someone is a ‘worker’. (3/10)
To remind ourselves, worker status requires two things: that the worker is engaged for ‘personal service’ (i.e. there is an expectation that worker carries out the services personally); and that they work in a capacity not akin to a customer / client relationship. (4/10)
When assessing whether there is a personal service, we tend to look for whether the contract allows the worker to substitute – i.e. essentially subcontract their work to someone else. A genuine substitution clause in the contract can be fatal to showing personal service. (5/10)
Courts have long been conscious, though, of looking at the *reality* of the contractual arrangements. Simply putting a sham substitute clause into the contract that is not / cannot be honoured will not get you out of a jam. It has to be the real thing. (6/10)
Supreme Court seems to going a tiny bit further. It says (paras 32-34) question is not whether contract is 100% for personal service, but rather whether “the dominant feature of Mr Smith’s contracts with Pimlico was an obligation of personal performance” (para 34). (7/10)
So in future we should be asking ourselves “is it a dominant feature of this contract that Mr X does this work, or is it instead open for *anyone* to do the work?”. A limited (and here it was very limited) substitution clause, even if genuine, may not be fatal. (8/10)
What does this mean for other gig economy businesses? Not a lot, tbh. Personal service has always been interpreted like this, all we have is (slightly) clearer test. If you insist Mr X does the work & control how he does it, Mr X is most likely a worker, not a contractor. (9/10)
ALSO, it’s worth noting that there’s lots of gov’t / parl’y interest in this. Two select committee reports & the Taylor review, on the back of which gov’t has commenced consultation. So there may be legislative changes to come, which could change everything… (10/10)

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