Gig Economy: Minimum Amount of Work Not Required for Worker Status
This article sounds a note of caution for businesses and organisations recruiting workers, particularly that an obligation to accept and perform a minimum amount of work is not prerequisite for worker status.
Rulings in the past couple of years or so have been strongly in the workers’ favour in the gig economy (think Uber and Deliveroo, for instance). Typically paid for each job they do, they have been held to have worker status and thus entitled to employment benefits, such as the national minimum wage, statutory sick pay and paid holiday.
It’s not often we hear or read about the gig economy in the context of professional services, but an interesting development involving a barrister sheds light on the court’s approach in such a case.
Here, a barrister had been appointed as panel chair for the Nursing and Midwifery Council for a 4-year term. When that expired, he was reappointed for a further four years.
His letter of appointment stated that he was an independent contractor. The NMC was not obliged to offer a minimum number of dates and he wasn’t obliged to accept. He was, however, obliged to offer his services personally. The terms also stated that he had business accounts prepared and submitted to HMRC in which he offset business expenses against fees received from the NMC.
The Employment Appeal Tribunal upheld his claim for holiday pay on the basis that he was a ‘worker’ within the meaning of s230(3)(b) Employment Rights Act, as well as the Working Time Regulations.
Guiding principles
Businesses would do well to understand the factors and principles on which the tribunal came to the conclusion that the barrister was a ‘worker’ for these purposes, particularly:
- There was a contract between the parties at all material times in which the claimant had agreed to provide his services personally.
- The claimant provided his services as a panel member chair in pursuance of the overarching agreement. On each occasion, it was the subject of a specific contract between the parties, in relation to which the NMC agreed to pay him fee in return for him agreeing to sit on a hearing.
- The absence of an irreducible minimum of obligation could be relevant, but was not fatal to a conclusion of worker status.
What does this mean?
There’s no denying that the issue of employment status in the gig economy is not clear-cut and further rulings can be expected.
What this latest decision does do is suggest that a worker does not have to be obliged to perform a minimum amount of work to be classed as a ‘worker’. Though each case will be assessed on its facts and individual circumstances, business should review their arrangements with contractors and workers – with the help of specialist solicitors – to ensure they understand the true legal status of their workers.
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