In Boxer v Excel Group Services Ltd (in liquidation) the Employment Tribunal has delivered the latest chapter in the contractor/worker saga.
The case follows a similar pattern to recent “gig economy” cases such as Uber, CitySprint, and Pimlico Plumbers. The Claimant worked as a cycle courier for Excel, typically working 5 days a week, 9 hours a day under the control of an Excel “controller”. Contractual documents described the Claimant as variously a “contractor” and a “subcontractor” but the Claimant argued that he was a worker and therefore entitled to claim unpaid holiday pay.
The Tribunal upheld the claim finding that, despite the contractual documents, the true nature of the working relationship between the parties meant that the Claimant was a worker during the period he was logged into Excel’s system. Key to this conclusion was the Claimant’s lack of flexibility while logged in. Though he could (and indeed did) take time off for other work, this had to be by prior arrangement. When he was logged into Excel’s system he was expected to be available throughout the day to take jobs, and had to “stand by” while waiting for a job and could not move location without his controller’s permission. Also relevant to the decision was the Claimant’s lack of a realistic right to substitute performance, that he was paid a fixed rate that he did not negotiate, and that he did not have to bear the cost of insurance or damage in transit.
While the Tribunal’s decision for the most part is a reiteration of previous decisions, it makes clear that Tribunals are increasingly willing to look behind contractual documents to assess the practical reality of working arrangements.
The pace of developments in this area shows no sign of slowing. Twenty Deliveroo couriers are reportedly preparing a claim for holiday pay and the minimum wage, and Uber’s appeal against the Employment Tribunal’s decision is forthcoming. As the number of claims rises, there is an increasing likelihood that the Supreme Court will hear an appeal in one or more of these cases. If that happens, we can only hope they will deliver some much-needed clarity.