In this blog, Rachel Crasnow QC considers the latest instalment in the Addison Lee litigation (Addison Lee v Gascoigne), a case in which Cloisters’ Tamar Burton represented the successful claimant at first instance and on appeal. She was instructed by the Independent Workers Union of Great Britain.
The claimant (“C”) had been a cycle courier in London for Addison Lee (“AL”) for 9 years until 2017. After he stopped working for AL because of back problems, he brought a claim for holiday pay arguing he was a “limb (b) worker” within the meaning of Reg 2 of the Working Time Regulations 1998 and s.230(3)(b) ERA 1996. The Tribunal accepted his claim and ordered AL to pay him the appropriate sum of holiday pay. AL appealed to the EAT which, on 11 May 2018, dismissed the appeal.
C began his employment in August 2008. In October 2015 AL introduced a new contract of employment that expressly referred to C as a self-employed contractor. The ET accepted C’s evidence that he had no choice but to sign the new contract.
Even though the evidence showed a very variable work pattern by C and that there was no requirement for C to log-on to the Respondent’s app, the ET found that there was sufficient mutuality of obligation to establish limb b worker status. From the time C logged onto the app, “both sides expected that he was available for work, would be provided with it and that he would carry it out as directed by the controller.”  Despite the terms of the 2015 contract, applying Autoclenz v Belcher  ICR 1157, the ET concluded that the true relationship was not encapsulated by that amended contractual wording since:
"45. …a. The respondent and the claimant worked together in a team and under a contract whereby the claimant was expected to carry out work for the respondent, under its direction, when logged into the system.
wrokb. He performed the work personally, and not because Addison Lee was his client or customer.”
For this reason the ET said the contract incorrectly portrayed the working relationship and concluded that C was a worker for the purposes of Reg 2 of the Working Time Regulations 1998 and s. 230(3)(b) ERA 1996.
The first ground of AL’s appeal asserted that the ET had erred in law in finding there was sufficient mutuality of obligation to give rise to a contract. AL argued that the ET’s decision could not stand alongside the principle as set out in James v Redcats  ICR 1006: namely that the choice of when to work, or not work, was inconsistent with being a worker. AL tried to distinguish the principle in Uber by saying that there were no consequences of refusing work for AL couriers unlike the situation for Uber drivers.
The EAT decided that firstly, whilst this challenge was framed as an error of law, it was really one of fact not law: “namely whether there is a sufficient factual substratum to support the finding that a legal obligation has arisen: St Ives Plymouth per Elias P at paragraph 28” . This was a perversity appeal (as was ground 2).
The EAT had no difficultly in stating that the ET’s observations about mutual expectations of the parties supported its conclusion that “during the log on period, there was a contractual relationship with the identified obligations to offer work, provided G was in the approved area; and for the offer to be accepted, subject to the entitlement to decline, or to withdraw acceptance, if it transpired that the parcel was too heavy” . That the courier was entitled to log off was not inconsistent with the obligation to accept work when logged on.
The second ground of appeal involved various challenges on a perversity basis to the ET’s multi-factorial assessment that C had the status of a limb b worker. The EAT dismissed the suggestion that assessment was vitiated by factual error and said there was no basis to challenge the ET’s assessment that the written terms of contract reflected the reality of the situation nor its consequent conclusion that C was a limb b worker.
This appeal is yet another example of UK courts demonstrating their ability to apply and update principles of contract law to those individuals who sell their labour as a part of the so-called “gig economy”. The legacy of Autoclenz is that attempts by employers to misclassify status will not distract from the necessary focus on the reality of the situation as it appears from the courts’ examination of the facts.
Given these recent judgments, do we really need the status elements of the Taylor review into modern working (raising the question of whether people are being “controlled and supervised”) to be implemented via legislation? Are our courts and tribunals not doing a good enough job, which in time will provide clarity to the bulk of industries which utilise even the most technologically novel working practices?
Cloisters continues to represent a significant number of parties in these gig economy cases, from the case of Uber (Jason Galbraith-Marten QC and Sheryn Omeri), Dewhurst v City Sprint (Jason Galbraith-Marten QC and Sarah Fraser Butlin), Boxer v Excel (Caspar Glyn QC and Rachel Barrett), Deliveroo (Schona Jolly QC), the courier company Stuart (Schona Jolly QC and Olivia Faith Dobbie) to upcoming foster carers cases (Robin Allen QC, Rachel Crasnow QC and Dee Masters).