Worker status: Private hire drivers are not contractors
Thursday 29th November 2018
The EAT has upheld an earlier Tribunal decision and found that the drivers in Addison Lee Limited v Lange and others are workers. In so finding, the EAT followed the trend since Autoclenz and looked at how the contract operates in the real world, rather than only examining contractual terms.
‘Workers’ are a class of individuals who work under a contract of employment, or any other contract where (broadly speaking) one party to the contract provides services to another, in a relationship that is not that of client or customer. Workers benefit from a number of key employment protections, including holiday pay, and national minimum wage.
The three claimants were drivers for the respondent private hire firm, under a ‘Drivers Contract’. They claimed that rather than being independent contractors as purported in the contract, they were actually workers. In making this claim they relied on various facts including: an in depth recruitment process, experiencing long working hours and six day weeks, obvious branding on the cars that they rented from Addison Lee, and the dress code standards. Significantly for the EAT, whenever a driver was logged onto the Addison Lee hand-held computer system, he would be deemed by the respondent company to be available to work.
(Additionally at some point the Chief Executive noted publically that ‘our employees are full-time professional drivers, and we recruit, vet and train them’, which may have served to undermine the respondent’s argument somewhat).
Decision and comment
This decision is not a great surprise in the context of recent ‘worker’ cases. Judgment is also awaited from the Court of Appeal in Uber BV v Aslam, dealing with similar themes so we will no doubt return to this topic in the coming months. Longer term, a government response to the Taylor Review is awaited, and may change the existing employment status tests.
In the meantime, employers can be reassured that every case will be decided on its own facts. A business model that exerts less control over its operatives than in the present case will not necessarily lead to a finding of worker status. However, they should also be aware that the tribunal will apply a ‘realistic and worldly wise’ approach so that where the contract does not properly reflect the actual agreement between the parties, will look at the reality of the situation. Attempts to exploit workers with complex schemes will not prevent a tribunal from looking beneath the surface.