Andrew Boxer, a cycle courier, started working for Excel Group Services Limited (“Excel”) in September 2013.
On the 22nd of March 2016 Mr Boxer bought a claim in the Employment Tribunal arguing that he was entitled to one week’s pay for time taken off (but not paid) between the 8th and the 15th of March 2016. This time was valued at £321.16.
Mr Boxer based his claim on the basis that he was a worker and as such, had employment rights including a statutory entitlement to holiday pay. In the contract between Mr Boxer and Excel, Mr Boxer was described as a “subcontractor” and was registered with HMRC as being self-employed.
Mr Boxer provided his services using his own bike, mobile phone and protective clothing. However, Excel provided Mr Boxer with a radio and a small computer (although this was replaced by an app which Mr Boxer had installed on his own mobile phone).
In addition to providing his own equipment, Mr Boxer was required by Excel to:
- work nine hours per day, five days per week;
- make himself available to provide services at all times during the working day;
- take time off or change his hours of work only by giving notice to, or agreement with, Excel;
- refrain from agreeing his own terms of service with clients of Excel; and
- not be responsible for the risk of the cost of damage of goods in transit.
These elements painted a picture of a “controlling” relationship by Excel. This was highlighted by the fact that the service provided by those undertaking courier jobs is highly time-critical and as such requires a high level of reliability from those couriers for Excel to operate it business.
Mr Boxer argued that in the event that he were to become less reliable at performing his job, then he would be sacked and as such was not “self-employed”. The Tribunal was therefore required to consider whether or not Mr Boxer was a “worker” under section 230(3)(b) of the Employment Rights Act 1996 as he undertook the performance of work personally under a contract. If this were deemed to be the case, Mr Boxer would be entitled to receive employment rights which would include statutory holiday pay.
The Tribunal, applying the recent decision of Pimlico Plumbers Ltd v Smith, stated that this was:
“A business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker.”
In reaching its decision, the Tribunal took the view that the contract between Excel and Mr Boxer did not accurately reflect the reality of the situation. Although Mr Boxer provided his own “tools of the trade”, the view of the Tribunal was that he was not providing services on his own account as a business undertaking in his work for Excel and that he was not entering into contracts for the benefit of his business with other clients.
In addition, it was decided that the contract between Excel and Mr Boxer gave Mr Boxer little or no freedom or flexibility in the relationship with Excel, and he was paid a fixed, non-negotiable rate for this work.
Therefore, when looking at the entirety of the situation, the Tribunal considered that Mr Boxer was indeed a “worker” in accordance with “limb (b)” of section 230(3) of the Employment Rights Act 1996 and was entitled to be paid for one week’s holiday.
By Daniel Gardener
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