Worker Status: Still No Certainty

The Supreme Court has handed down its long anticipated judgment in Pimlico Plumbers Ltd and Mullins v Smith ([2018] UKSC 29). In recent years, the courts have grappled with applying the various statutory definitions of "worker" to the rapidly evolving labour market and the gig economy (see feature article "The gig economy: shifting sands in employment status", www.practicallaw.com/2-639-5933). It had been hoped that this decision would bring some much-needed clarity for both businesses and individuals on how a workforce in the gig economy should be properly categorised.

Regrettably, the judgment does not provide that clarity, although on the facts in this particular case, the court agreed that the individual concerned was a worker (see box "Uncertain times").

Determining employment status

Mr Smith was engaged by Pimlico Plumbers as an engineer between 2005 and 2011. Mr Smith brought a number of claims in the employment tribunal. As a preliminary issue, the tribunal was asked to determine Mr Smith's employment status, with Mr Smith arguing that he was an employee and Pimlico maintaining that he was self-employed. Both the tribunal and the Employment Appeal Tribunal found that while Mr Smith was not an employee, he was a worker (ET2374916/2011; UKEAT/0495/12/ DM).

The Court of Appeal agreed with the lower tribunals and held that Mr Smith was a worker within the definition of limb (b) of section 230(3) of the Employment Rights Act 1996 and was "in employment" for the purposes of the Equality Act 2010 (limb (b) worker) ([2017] EWCA Civ 51; see News brief "Worker status: a busted flush?", www. practicallaw.com/3-639-2689). It held that the key elements of the definitions were satisfi ed, namely that:

There was a contract to personally perform work. Pimlico was not a customer or client of Mr Smith. Uncertain times

Despite high expectations for a set of clear guiding principles around worker status from the Supreme Court, the decision in Pimlico Plumbers Ltd and Mullins v Smith is not likely to stem the fl ow of litigation in this area ([2018] UKSC 29). As this is the latest in a series of judgments that are largely limited to their facts, the calls for clarifi cation in the form of legislation are only set to grow louder. The government consultation on employment status has recently closed, and most practitioners and people within industry will now be looking to the government to provide much needed certainty...

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