At the original hearing, the Employment Tribunal (ET) decided that Mr Gascoigne should be given the status of 'worker' in accordance with Regulation 2 of the Working Time Regulations (WTR), and therefore afforded certain rights under the WTR, including holiday pay.
Addison Lee had appealed against the decision on two grounds:
Firstly, that the ET made an error in law when it determined that there was "mutuality of obligations" between the parties during the times that Mr Gascoigne was logged in to the app used to assign him jobs. Addison Lee argued it was not obliged to offer work to Mr Gascoigne and he was not obliged to accept any work which was offered. If an employee can decide when or if to work, then he or she cannot be considered a worker.
Secondly, that the ET made an unreasonable decision when looking at all the factors relevant to Mr Gascoigne's employment and the written terms of his employment.
In coming to its decision at the original hearing, the ET had considered how pay was administered, Mr Gascoigne's working patterns, equipment provided by Addison Lee, the procedure for taking holidays, and deductions made by Addison Lee from Mr Gascoigne's wages, amongst other factors including the written terms of his employment.
The written terms of employment stated that Mr Gascoigne was employed as an independent contractor, and went on to state that "nothing in this agreement shall render you an employee, worker, agent or partner."
The first ground of appeal was rejected by the EAT. Mr Gascoigne was provided with a palmtop computer and required to log on to receive directions to his next job. Addison Lee would assign the jobs, and Mr Gascoigne was only entitled to reject the assignment on a limited basis, such as if the parcel was too heavy. It was reasonable for the ET to conclude on the evidence before it that, from the time Mr Gascoigne logged in, both sides expected that he was available for work, would be provided with it and that he would carry it out as directed by Addison Lee's controller.
The second ground of appeal was also rejected. The EAT held that the ET had made no factual error in considering the terms of Mr Gascoigne's employment, and that the written terms did not accurately reflect the reality of Mr Gascoigne's employment with Addison Lee.
Employers should be aware that this case reiterates the point made in earlier case law, that an employment contract which does not accurately reflect the relationship between the parties will not be upheld in the tribunal.
Employers should carefully consider the terms of an employee's employment at the beginning of their contractual relationship to ensure these are accurately reflected in the contract. This will assist in ensuring that the employee is afforded the proper terms of employment, including rights to holiday pay and other benefits.
This case is the latest in a number of cases adducing the employment status of couriers in the 'gig economy.' Other high profile companies which have faced similar action include Pimlico Plumbers Uber and Citysprint. Uber's appeal in their case is due to be heard by the Court of Appeal in October 2018. The Supreme Court's judgment in the Pimlico Plumbers case is expected soon.
In July 2017 the government published the Taylor Report, an independent review into modern working practices by Matthew Taylor, the chief executive of the Royal Society of Arts. The report recommended the introduction of legislation to address the issues facing the gig economy. The trend in case law in recent years seems to suggest that this is still being tackled at a common law level, and on a case-by-case basis.