Many so called "gig economy" companies seek to avoid
employment protection rights by engaging those who work for them as
self-employed contractors. As a consequence of being self-employed,
the individuals have no employment rights such as
unfair dismissal protection, no entitlement to receive the national
minimum wage and no entitlement to paid holidays.
There have been a series of cases reported recently commencing
with the Uber Tribunal decision, followed by Deliveroo
Bike Courier Tribunal and more recently the case of
Pimlico Plumbers and Charlie Mullens v. Garry Smith EWCA
CIV 51 in terms of which the Courts and Tribunals have
analysed whether or not somebody is truly self-employed or in
actual fact a worker or employee for the purposes
of employment rights.
Getting employment status right for your business will have
a material bearing on your financial wellbeing!
What is a worker?
A worker is neither an employee or self-employed. A worker is
someone who performs work or services personally
for another. Workers are entitled to be paid holidays and national
What this trio of cases underline is that simply asserting in
the contractual documentation that somebody is self-employed does
not mean that as matter of law and fact they actually are.
Tribunals will consider what the practical reality actually is and
self-employment status will not be attained simply through
contractual documentation alone.
What did the Courts/Tribunal consider significant?
In the Pimlico case above, the Court put a spotlight on
a business model under which operatives are intended to appear to
clients of the business as working for the business but at the same
time the business itself seeks to maintain that, there is a legal
relationship of independent contractor rather than
"employer" and "employee" or
The Court provided a useful summary of the principles which are
applicable to determining whether or not somebody is self-employed,
a worker or an employee. In particular, it focused on whether or
not there was a requirement for personal performance by the
individual. If there was a requirement for personal performance
then it was more likely that the individual would be an employee or
Additional factors considered of significance in the
Uber and Deliveroo cases were that the individual
could not determine how jobs were performed; could not pick and
choose the jobs carried out when working; could not accept or
undertake work for others; and had restrictions on appointing a
substitute in respect of non-availability.
The greater the degree of control and insistence on personal
performance the greater the prospect of employment or worker
Whilst these cases have concerned the so called "gig
economy" they do, of course, have implications for employers
in for example, medical general practice and dental sectors who
employ professionals such as GPs and Dentists on a self-employed
It is worth undertaking a risk assessment of the contracts of
appointment of professionals in these sectors to identify whether
they are genuinely self-employed contractors or are at risk of
being found to be employees or workers.
If you would like any further information or assistance
regarding these developments then please contact the Davidson
Chalmers Employment Team who will be happy to provide their
expertise and advice.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).