In June 2018, the Supreme Court held that a plumber engaged by Pimlico Plumbers under a written agreement which stated the company was not obliged to offer work and he was not obliged to accept it, fell within the definition of a worker and not self-employed.
The above decision was based upon assessing the true relationship between the parties namely the plumber was required to wear a company uniform, carry a company mobile phone and hire a company van whilst carrying out their work.
In December 2018 the Court of Appeal upheld a finding that Uber employed their drivers as workers and the label of agency workers contained within the written documentation did not properly reflect the reality of the relationship.
The above cases have had wide-ranging consequences for companies and organisations engaging individuals on a self-employed basis and confusion has arisen if other forms of funded service arrangements could be caught out.
BRITISH CYCLING CASE
This month, Employment Tribunal has given an important decision on whether the relationship between Jess Varnish, cyclist, and British Cycling / UK Sport created an employment relationship where there was an agreement in place to fund a grant towards her living and training costs.
Jess Varnish had failed to achieve the qualifying standard for Rio 2016 and was dropped from the elite cycling programme by British Cycling and was claiming against British Cycling and UK Sport for wrongful dismissal and sex discrimination.
Jess Varnish case argument was that British Cycling were exercising enough control over her, by controlling what she ate, how and where she trained, with restrictions on time off that was enough to create an employment relationship.
UK Sport argument was that there was no employment relationship and the grant was provided to allow her to prepare as best she could for events.
The Employment Tribunal in their 43-page judgement decided that Jess Varnish was not an employee or worker for the British Cycling and UK Sport as they did not provide work for her to perform personally but that she was fulfilling a commitment to train in accordance with her respective agreements with the two organisations in the hope of achieving sporting success internationally thus there was no mutuality of obligation.
Also, the Employment Tribunal found that British Cycling did not pay her a wage as funding was provided by National Lottery and not by them and the funding provided by UK Sport was an award, like a student grant.
Although this is a first instance decision of an Employment Tribunal but likely to be welcome relief to businesses and organizations providing such funding arrangements or something similar as had the Employment Tribunal found that Jess Varnish was an employee of the Governing Bodies she would have had extra employment rights such as: -
- statutory sick pay;
- pension contributions;
- paid holiday; statutory maternity, paternity, adoption and share parental leave and pay;
- minimum notice periods if her employment was to end;
- protection against unfair dismissal.
Despite the findings of this decision, caution is still required in engaging individuals on self-employed contracts and would be prudent to seek HR guidance on such matters.
YBC members can access advice on this and other HR & employment issues by calling the YBC Support Helpline which is included for free as part of thier memership.