In Pimlico Plumbers Ltd v Smith, the Supreme Court agreed that a nominally self-employed plumber was a worker and so entitled to paid annual leave and protection against discrimination.
Mr Smith was engaged by Pimlico Plumber for over five years. His contract stated that he was an independent contractor, that he was in business on his own account, that he was under no obligation to accept work and that the company was under no obligation to offer him work. The contract stated that he would not be paid if a customer failed to pay for the job and he was responsible for ensuring that liability insurance was in place. Mr Smith was registered for VAT, submitted invoices to Pimlico Plumbers and filed his own tax returns as a self-employed person.
Pimlico Plumbers terminated the contract around four months after Mr Smith suffered a heart attack. He brought claims including those for unfair and wrongful dismissal (for which employee status is required), holiday pay and disability discrimination (for which worker status is required).
The employment tribunal found that Mr Smith was not an employee, but that he was a worker. The EAT agreed. On further appeals, the Court of Appeal and Supreme Court also agreed with the decision of the tribunal on worker status.
The decision is highly fact-sensitive and focused on whether Mr Smith was required to perform the work personally (which would suggest worker status) and whether Pimlico Plumbers was in the position of a client or customer of Mr Smith (which would suggest that he was selfemployed). Important factors in the finding of worker status were as follows.
Mr Smith had to perform the work personally. He had only a very limited right to arrange for a substitute to perform the work when he could not or was unwilling to take on a job. Although the written contract did not include the right to send a substitute, Mr Smith could in practice arrange for another plumber working for Pimlico to carry it out. However, this person was under the same obligations to Pimlico as Mr Smith.
Pimlico Plumbers was not a client or customer of Mr Smith. The court found that there was an umbrella contract. Pimlico Plumbers were found to have an obligation to offer Mr Smith work, if the work was available. Mr Smith had an obligation to keep himself available for Pimlico work for up to 40 hours over five days a week, even though he could turn down a particular assignment. It found that the company exercised significant control over Mr Smith, including making him wear a branded uniform, drive in a branded van and carry a Pimlico Plumbers ID card. There were also restrictive covenants in the contract which prevented him from working as a plumber in the Greater London area for a period of three months after termination of employment.
This decision simply confirms the current case law position on worker status. It is important that organisations are aware of the possibility that so-called contractors may be found to be employees or workers in a tax or employment tribunal and the consequent risks of employment law claims or demands for PAYE and NICs arrears. HMRC provides a helpful on-line tool for checking employment status for tax purposes.
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