UK: The End Of The Road For Pimlico Plumbers?

Last Updated: 15 July 2018
Article by Alison Downie

The short answer is not quite.

The Supreme Court has now given judgment in the long running and important case by plumber Gary Smith against Pimlico Plumbers in which he claimed he was a worker and not a self-employed contractor and so was entitled to certain rights and payments from Pimlico.

Last year the Court of Appeal upheld Gary Smith's claims as a worker but Pimlico decided to challenge that decision by appeal to the Supreme Court on the basis that the Court of Appeal got the facts wrong.

It had taken over six years for this case to reach the highest Court in the UK.

During that time and particularly in the last two years, drivers for Uber; couriers for CitySprint and riders for Deliveroo, amongst many others, have also commenced legal actions asserting their rights as workers and not self-employed contractors, on the same principles as Gary Smith.

These cases have generated widespread publicity and successes for these individuals seeking to establish that regardless of what any written contract might say about them being self-employed, and having precarious work arrangements, they are in fact a worker. A feature of these cases is that the employers appear to be fighting the Court decisions all the way, up to the highest Court, because the impact of the decisions so far in supporting the workers' claims are far reaching and potentially costly for those employers.

To recap, the cases concern an individual's employment status which dictates  specific legal statutory working rights and entitlements for that individual.  As a reminder, there are three main categories of employment status.

  1. Employee – where a contract of employment exists. An employee has the full range of employment rights including protection from unfair dismissal, right to a redundancy payment, holiday leave and pay and sick pay, and is also a worker for any rights so defined.
  2. Worker – where a contract for servers to do work personally exists (or an employment contact as above exists). A worker has a more limited range of working rights then an employee,  including to holiday leave and pay, the national minimum wage, possibly sick pay and no unlawful deductions from wages.
  3. Self-employed contractor – where neither of the above types of contract exist. This attracts a very limited range of working rights, e.g. health and safety, working time and (with qualifications) discrimination protection.

The presumption that because someone pays self-employed tax means that they cannot be a "worker" is wrong.


Mr Smith had worked for Pimlico Plumbers under an apparent self-employed written contract ,and the Pimlico Manual terms and conditions, for many years.   Under those terms he was required to work a minimum 40 hours per week, limited his right to work for other companies or himself, could only use other Pimlico operatives to do his work if he could not do it, and to use a Pimlico van.

He paid tax on a self-employed basis and VAT.

He had a heart attack, had been away ill and asked to work fewer hours which was refused. Pimlico terminated his contract.  He then claimed unfair dismissal, wrongful dismissal, asserting he was an employee, and also claimed holiday pay and unlawful deductions from wages as a worker under a contract for services.  Although it seems contradictory to claim as an employee and as a worker, all employees are workers in any event and alternative claims can be made in this way.

Finally, he made claims for disability discrimination under The Equality Act under extended definition of an employee, for which he had to show that he was employed under a contract personally to do work.


The original Tribunal Judge found that he was not an employee so was not entitled to protection from unfair dismissal.

The Judge also decided that on the wording of the contract and the manual there was a requirement for personal service from Mr Smith. There was no express contract term giving him absolute freedom to substitute another person to do the work for him and no evidence that in reality he could do so either.  He had some autonomy in carrying out the work but Pimlico exercised tight control over him, including on the 40 hours per week minimum.

The Judge decided he was therefore a worker and entitled to holiday leave and pay. He also qualified for discrimination protection as he had a contract to do work personally.

Pimlico appealed to the Court of Appeal. The Judges in that Court last year pored over all the detail again, including the contract terms and work arrangements. They then agreed with the original Tribunal Judge on all points.  Mr Smith was a worker.  Basically the test was of integration into and control by the business.

The Supreme Court decision

Pimlico Plumbers appealed against that Court of Appeal decision too, to the Supreme Court last year, with the main challenge being that the Court of Appeal was mistaken about the facts.

The main challenges were that Mr Smith was not required to provide personal service or that Pimlico was a client of customer of his which would mean he was not a worker.

The Supreme Court examined the evidence and previous judgements and dismissed the appeal on both grounds. It upheld the original Tribunal Judges findings as being reasonable. Mr Smith's claims against Pimlico for holiday pay etc  as worker now go back to the Employment Tribunal to be decided.

Charlie Mullins of Pimlico Plumbers however doesn't seem willing to accept this latest judgement and is reported to have said that he will take their case to the European Court of Justice, an interesting proposition in the context of Brexit proposals.

Government action to simplify?

It would be highly preferable for individuals to know their correct employment status from day one. Whilst the Courts are performing an effective function thus far in developing the law and confirming worker rights, it's clearly unfair that more and more workers must take costly and complex legal cases to enforce their rights.

Last year the Government commissioned Matthew Taylor to review modern working practices which included looking at employment status issues. Taylor's Good Work Review of Modern Working Practices recommended the government should set out the tests for worker status more clearly in law and that control should be more important than personal service. There should be  default worker status from day one for all those in companies which have a self employed workforce over a certain size. Finally "worker" should be re-labelled as dependent contractor.

The Government's response earlier this year was to announce they would take these recommendations forward, mainly by working on the case for legal change and carry out a consultation on the detailed tests to determine a worker ( or dependent contractor). It seems any implementation of such changes may take a very long time, if they take place at all.

The recent cases are frequently seen as a modern phenomena, the result of the rapidly increasing gig economy, the growth in part-time or independent working and a new category of "worker" having been identified and developed by the Courts over the last few years and as such it needs to be refined.

In fact, as the Supreme Court sets out in it's Judgment, over 125 years ago the category of "worker" was created in law and is nothing new at all.

In 1875 Parliament identified an intermediate category of working people, falling between those who worked as employees under contract of service and those who worked for others as independent contractors. Here is the "worker". That year Parliament passed the Employers and Workmen Act, providing a definition of a "workman" as a manual labourer working for an employer under a contract of service or a contract personally to execute any work or labour.

This category and the definition of it has further developed through legislation, particularly in the 1970's with the Equal Pay Act and then the Industrial Relations Act which defined the modern "worker", and  then into s 230 (3) of the Employment Rights Act 1996 definition of worker.

This is the basis on which the Courts are currently examining each case for worker status on its' facts and refining the tests used.

It appears that unless companies such as Pimlico, Uber and Deliveroo, who engage large numbers of individuals to work, cease their practices of imposing self employed status on individuals where it does not truly exist and is not wanted by the individual, then the Courts are likely to be fully engaged  on such cases as Mr Smiths for the foreseeable future.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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