Both the Employment Appeal Tribunal (“EAT”) and the Court of Appeal have made decisions on this issue recently.
Addison Lee provide private hire and courier services. Drivers are formally recruited and given training. They have guidelines on how to do the job. They lease branded cars. Each driver has a handheld computer from which jobs are allocated. They log on and off the system when they want. However, when logged on they are deemed ready to work and expected to accept jobs. The drivers' contractual paperwork says they are independent contractors.
In Lange v Addison Lee, three drivers brought claims for holiday pay and the national minimum wage, saying they were 'workers' rather than self- employed. To satisfy the legal test, the claimants had to show that they were contractually obliged to personally perform work for Addison Lee. They would also have to show that Addison Lee wasn’t simply a client or customer of their own small businesses.
Both the Employment Tribunal (“ET”) and the EAT said the drivers were workers. By signing up to the contract and hiring the car, the drivers were undertaking to do some work for Addison Lee. They remained subject to Addison Lee rules in between shifts in that they couldn't alter the car branding, no one else could drive the car and they paid ongoing vehicle charges. As a result, there was an implied overarching contract between 'logging on' sessions. Even without the overarching contract, the 'worker' definition was satisfied each time the individuals logged into the computer system. This was because they were undertaking to accept jobs allocated to them (even though the contracts said they did not have to). They were not running small businesses on their own account.
The courts recognise that there is an imbalance in power between company and individual when entering working relationships. Companies will not be allowed to rely on written contractual terms which do not reflect the true position.
