Pimlico Plumbers, Uber Drivers, Cycle Couriers, and Court Translators: Who is a Worker?

Abstract

Employment Status is back in the courts: the rapidly increasing prevalence of work arrangements once considered ‘atypical’ in the UK labour market – from zero-hours contracts to digitally mediated work in the ‘gig’ or on-demand economy – has led to a flurry of recent decisions grappling with the scope of employment and discrimination law.

Four cases have attracted particular attention: Secretary of State for Justice v Windle & Arada [2016] EWCA Civ 459 and Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51] at the appellate level, as well as Aslam & Farrar v Uber (2202550/2015), and Dewhurst v Citysprint UK Ltd (2202512/2016) at first instance. They have received broad coverage for their (mostly) worker-protective outcomes, and are all grappling with the same, beguilingly simple, question: who is a worker?

This note has a slightly narrower, technical focus: it highlights a series of potential problems in the Court of Appeal’s decisions in Windle and Pimlico, particularly when seen in the light of previous Supreme Court authority and Parliamentary intention.

I argue, first, that the different statutory extensions found in the Employment Rights Act 1996 (as amended) and the Equality Act 2010 should not be read as essentially synonymous. Second, I explore the relationship between the statutory extensions and the more traditional category of employee status. Finally, I suggest with respect that mutuality of obligations should not be applied as a criterion in determining whether an individual falls within the extended categories.

Keywords: Employment Law, Worker Status, Employee Status, Gig Economy, Uber, Pimlico Plumbers, Windle, Citysprint, zero-hours contracts, mutuality of obligation, Equality Act 2010, Employment Rights Act 1996