Controversial Employment?

Sports Direct, Uber and Deliveroo - the controversy regarding employment status continues.

Last month saw two new cases – Dhillon and Dhillon v HMRC and Dewhurst v CitySprint UK Ltd.

The first case was brought under tax legislation (which, unlike employment legislation, does not recognise “worker” status). It concerned a group of lorry drivers. The drivers could turn down work, there was no guarantee of work, and they had a limited right of substitution.

They received induction training, but then were largely unsupervised (although they had to meet competency and safety standards). They drove lorries belonging to Dhillon and Dhillon and were paid a fixed amount per shift.

The First-Tier Tax Tribunal found that the drivers were employees during each individual contract (so what we may have traditionally have referred to as “casual” employees). The tribunal found that the employer had a considerable degree of control over the drivers when they were working, and the drivers were not in business on their own account. As they were employees during the periods they worked, their earnings were subject to tax and NI deductions.

The second case – Dewhurst v CitySprint UK Limited – concerns a cycle courier, who CitySprint described as self-employed. Her services agreement specified clearly that there was no obligation on CitySprint to provide work and also no obligation on her to accept work.

If she didn’t work she wasn’t paid and she didn’t receive paid holiday, maternity or sick pay. However, in reality, Ms Dewhurst worked regular hours –four days a week, 9.30am to 6.30pm. Every morning she spoke to a controller, then logged into an online tracking system which determined her deliveries, and tracked her movements. She was given equipment and a uniform.

CitySprint automatically calculated her payments, and paid her every Friday, in arrears. The employment tribunal decided that the service agreement did not reflect the true nature of the working relationship and that Ms Dewhurst was a worker, and therefore entitled to receive holiday pay.

All these different cases show that employers must determine the nature of the working relationship before employees start working. Tribunals will look at the contract/documents, but will be just as interested to see what actually happens in practise.

For advice on this or any other employment issue, contact Coulthard Human Resources. Nichola@coulthardhr.co.uk www.coulthardhr.com or ring 07946541606

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