The Employment Appeal Tribunal (EAT) has confirmed a tribunal’s decision that an Addison Lee bike courier was a worker and not a self-employed, independent contractor. The consequence of this finding is that the courier will be entitled to holiday pay as well as some other employment rights.

Background

In the case of Addison Lee Ltd v Gascoigne, Mr Gascoigne had been working as a cycle courier for Addison Lee for nine years, his contract with them stated that he was “self employed”. He brought a claim in the employment tribunal stating that he was in fact a “worker” as opposed to an independent contractor and was therefore entitled to holiday pay.

Addison Lee’s defence

A key part of Addison Lee’s argument centred on “mutuality of obligation” (i.e. where an employer is obligated to provide work and an employee is obligated to accept that work). Mutuality of obligations has been identified by the Courts over the years as the key component of the employment relationship and without it, a person cannot be said to be an employee.

The company argued that there was no mutuality of obligation whenever Mr Gascoigne was logged in to the company’s app because he was free to decide when he worked, and could log out whenever he liked.

The EAT’s ruling

The EAT confirmed the tribunal’s conclusion that, when a courier logged in to the app, there was a contractual relationship between the two parties. Just because a courier could log out of the app doesn’t mean they weren’t obligated to accept work when logged in. The fact that couriers’ contracts said they were “self-employed” did not reflect reality.

The EAT upheld the tribunal’s decision that Mr Gascoigne was a worker as defined by the Employment Rights Act and the Working Time Regulations, meaning he was entitled to statutory holiday pay.

Comment

This case is part of a wave of litigation being conducted by those working in the so-called gig economy. While a gig economy worker might not be a full employee (and therefore entitled to a vast range of legal protections and rights) they are likely to be considered a worker in the eyes of the law and therefore entitled to holiday pay, pension contributions, and other legal protections not available to those who are self employed.

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