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The Employment Appeal Tribunal (EAT) has held in Addison Lee Ltd v Gascoigne that a cycle courier working for Addison Lee was a worker under the Working Time Regulations 1998 and the Employment Rights Act 1996, and not a genuinely independent contractor. He was therefore entitled to statutory holiday pay.

The claimant's contract stated that he was "an independent contractor". The contract provided that in the case of bookings with Addison Lee account holders he would act as a sub-contractor for Addison Lee delivering to its customers. For other bookings Addison Lee concluded contracts on his behalf with the customers. The contract provided that the claimant could choose the days and times he would be available, but there was no obligation on Addison Lee to offer work or on him to accept it when offered. He would, however, be deemed to be available and willing to provide work at any time that he was logged into an Addison Lee palmtop computer or app. The company had started requiring couriers to sign new contracts every three months. As the claimant was only rarely at the office, his contracts were signed on his behalf by driver liaison.

At first instance the tribunal held that the claimant was a worker, not a genuinely self-employed independent contractor, and so he was entitled to holiday pay. The contractual documentation did not reflect the reality of the relationship which was that the claimant had to perform work personally for the company under its control, rather than operating his own business. The EAT agreed. It held that the tribunal was correct to conclude that there was a contract in existence during the periods when the claimant was logged onto the app, and that during these periods mutual obligations existed.

Take note: This decision is another, in what is now an extensive body of case law, where those who are purportedly engaged as self-employed independent contractors in fact have worker status. Meanwhile the government has accepted the Taylor Review's conclusion that there is a lack of clarity and certainty surrounding the tests for employment status, and has issued a consultation on the issue which closes on 1 June.

This article is taken from HR Law - June 2018.