Addison Lee Ltd v. Gascoigne (WORKING TIME REGULATIONS - Holiday pay), Court of Appeal - United Kingdom Employment Appeal Tribunal, May 11, 2018, [2018] UKEAT 0289_17_1105

Resolution Date:May 11, 2018
Issuing Organization:United Kingdom Employment Appeal Tribunal
Actores:Addison Lee Ltd v. Gascoigne (WORKING TIME REGULATIONS - Holiday pay)
 
FREE EXCERPT

Appeal No. UKEAT/0289/17/LA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 24 April 2018

Judgment handed down on 11 May 2018

Before

THE HONOURABLE MR JUSTICE SOOLE

MRS C BAELZ

MS P TATLOW

ADDISON LEE LTD APPELLANT

MR C GASCOIGNE RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

|For the Appellant |MR RICHARD LEIPER |

| |(One of Her Majesty’s Counsel) |

| |Instructed by: |

| |Baker & McKenzie LLP |

| |100 New Bridge Street |

| |London |

| |EC4V 6JA |

| | |

|For the Respondent |MR PETER OLDHAM |

| |(One of Her Majesty’s Counsel) |

| |and |

| |MS TAMAR BURTON |

| |(of Counsel) |

| |Instructed by: |

| |IWGB |

| |12-20 Baron Street |

| |London |

| |N1 9LL |

| | |

SUMMARY

WORKING TIME REGULATIONS - Worker

WORKING TIME REGULATIONS - Holiday pay

The Claimant was a cycle courier with the Respondent. The ET upheld his claim that he was a ‘limb (b) worker’ within the meaning of Regulation 2 of the Working Time Regulations (“WTR”); and in consequence entitled to holiday pay thereunder. In doing so it held that the written terms of contract between the parties, describing G as an ‘independent contractor’, did not reflect the reality of the relationship; and that, during the period when G was ‘logged on’ to the Respondent’s app, there was a contract with mutual obligations for ‘jobs’ to be offered and accepted.

The Respondent appealed on two grounds.

First, that on the facts as found by the ET, there was no basis to conclude that G was under any legal obligation to work, i.e. to accept jobs offered to him when logged on. His decision whether or not to do so (as with his entitlement to log on or off at will) was a matter for his whim and fancy. Accordingly the claim must fail for lack of the necessary mutuality of obligation.

Further or alternatively, that the ET’s ‘multi-factorial assessment’ that G had the status of a ‘limb (b) worker’ was vitiated by factual error and should be remitted to another Tribunal.

The EAT rejected both grounds of appeal.

THE HONOURABLE MR JUSTICE SOOLE

  1. This is an appeal by the Respondent (“AL”) against the decision of the Central London Employment Tribunal (Employment Judge Wade) sent to the parties on 2 August 2017 whereby it was held that the Claimant cycle courier (“G”) was a worker within the meaning of Regulation 2 of the Working Time Regulations (“WTR”) and in consequence was entitled to holiday pay for the period 1-16 March 2016. In reaching that conclusion the Tribunal in particular held that the written contract between AL and G which purported to identify G as self-employed did not reflect the reality of their legal relationship; and that their true contractual relationship contained the necessary element of mutuality of obligation.

  2. AL appeals on two grounds. First, that the Tribunal erred in law in its conclusion that G had an obligation to perform work for AL. Secondly, that even if he had a minimum obligation to do so, the Tribunal’s ‘multi-factorial assessment’ that he was a ‘worker’ was perverse.

  3. Regulation 2 of the WTR provides that:

    “ “worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under) -

    (a) a contract of employment; or

    (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

    and any reference to a worker’s contract shall be construed accordingly.”

  4. G contends that his contract with AL fell within ‘limb (b)’ of this definition. As with any contract, a necessary ingredient of a ‘limb (b) contract’ is mutuality of obligation : see e.g. Quashie v Stringfellow Restaurants Ltd [2013] IRLR 99 per Elias LJ at paragraphs 10-12; Windle v Secretary of State for Justice [2016] IRLR 628 per Underhill LJ at paragraph 14. AL contends that this is a case of a true ‘zero hours contract’ where there is no such obligation, i.e. no obligation for it to offer any work to G; and no obligation on G to accept any such offer. As HH Judge Eady QC observed in the Uber decision handed down after the Tribunal’s judgment in the present case “In most instances of assignment-specific work (sometimes referred to as “zero-hours” work), there will simply be no mutuality of obligation between assignments: no obligation for work to be offered and no obligation for any offer of work to be accepted”: Uber B.V. v Aslam [2018] IRLR 97 at paragraph 121. The question on the first ground of appeal is whether the Tribunal was right to find that there was mutuality of obligation in the present case.

  5. On the second ground, there is no dispute as to the relevant law which looks to the reality of the relationship: Autoclenz Ltd v Belcher [2011] ICR 1157 SC. The question is whether the Tribunal’s conclusion of fact was perverse.

  6. We start with the facts found by the Tribunal. AL’s business includes the provision of private-hire taxis to businesses and individuals, working with around 4000 drivers, and a small courier business with around 500 couriers using motorcycles, cars, vans and bicycles. The number of such ‘cycle’/‘pushbike’ couriers is 30-40. They operate within a relatively small geographical area within Central London where pedal power is more likely to get a letter or parcel delivered quickly. The service provides speedy delivery, usually within an hour, to the customers. As the Tribunal found “This means that its couriers need to be responsive and work quickly during a tightly controlled working day” (paragraph 7).

  7. Controllers carry out the “tricky task” of allocating jobs to couriers, tracking their progress by radio and GPS and dealing with queries. Each courier has an allocated call sign. As to equipment, the courier is supplied with a radio and palm top computer/XDA and latterly an app; also a GPS tracker. The courier is...

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