Can you be a 'worker' even though you're self-employed?

13 July 2018

We look at the Supreme Court's decision on the high-profile Pimlico Plumbers case.

Mr Smith worked for Pimlico Plumbers as an engineer. He had a uniform and a branded van. He had no obligation to accept work, but there was a separate provision in his contract requiring him to work at least 40 hours per week and pre-book any holiday through the company procedure. He was also subject to restrictive covenants, including one that, in effect, prevented him from being a plumber in the Greater London area for three months following termination. However, he was classed as self-employed for tax purposes (and so paid his own tax and national insurance), used his own tools and paid his own insurance. He could subcontract work only to other Pimlico operatives. He also took some financial risk in relation to fees.

Mr Smith claimed he was pushed out of the business when he asked to reduce his hours after a heart attack. He brought claims for unfair dismissal as an employee and various other claims as a worker, including a disability discrimination claim.

The Supreme Court confirmed that Mr Smith was not an employee, but he was a worker and 'in employment' (as a worker) for the purposes of discrimination law. The company exerted significant control over him, including financial control. The court considered that the overall picture clearly pointed away from him being a truly independent contractor. He was well integrated into the workforce. His right to subcontract work was too limiting for genuinely self-employed status. He was not running his own business and Pimlico Plumbers were not a client or customer of Mr Smith. Mr Smith was a “worker” and his claims will now be heard by a tribunal.

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