A worker who has not been paid their wages has the right to bring a claim in an Employment Tribunal (ET) for an unlawful deduction from wages.
But who is a worker?
The law states a worker is someone who personally performs any work or services under a contract of employment or any other contract, provided that the worker is not in business on their own account (i.e is genuinely self-employed).
The legal definition of a worker is important because workers have some employment rights (see Box on Employment Rights) including a right to be paid the national minimum wage and the right to pursue a claim for unlawful deduction from wages in an Employment Tribunal if they have not been paid the wages they are owed including, for example, if they have not been paid holiday pay.
This compares with those who are genuinely self-employed (i.e. in business on their own account), who do not have those same employment rights.
Employers in the new ‘gig economy’ often categorise those working for them as self-employed. For example, taxi drivers, couriers and cleaners are often given contracts or “written terms” stipulating that they are “independent contractors” or are “self-employed”. In other cases, there may be nothing in writing at all other than the fact that the company classifies them as self-employed.
With reports of couriers having pay deducted because they have not made a delivery within the allotted hour or not being paid for the last shift because they did not accept a job in the last minute before their shift ended, those working in this sector are often unclear as to what action they can or cannot take to recover pay that is rightly due to them.
The correct categorisation of the working relationship is all-important in determining whether someone is a worker and therefore is able to take action to recover unpaid wages.
Case law has held that there are two key elements to determining whether someone is a worker. The person must:
- Provide personal service; and
- There must be mutuality of obligations between the parties.
What is personal service?
At one level establishing that someone provides personal service seems relatively easy. Surely, if you are asked to do the work and you do it there is no problem? However, some employers claim that those that work for them have the freedom to get others to do the work for them – during periods of sickness or holidays, for example. This, the employers claim, means that the person can provide a substitute who can do the work for them, so they are not required to carry out personal service. In Autoclenz Ltd v Belcher, the company provided car valeters with a written contract which stipulated that the car valeters were “entitled to engage one or more individuals to carry out the valeting” on their behalf. However, in practice, it is difficult, if not nigh on impossible, to find anyone else to do the work or at least anyone whom the company is willing to accept. If that is the reality then there is every chance they are in fact providing personal service and so satisfy the first step in establishing that they are a worker.
What is mutuality of obligation?
This is the obligation on the employer to provide work and a correlating obligation on the person to accept work when it is offered.
Many of those working in the new “gig economy” are sold the idea of self-employment on the basis that they can decide when they want to work and that they can be their own boss. However, when there is rent to pay, food and clothes to buy the ability to choose not to work is often no choice at all.
The reality is that if work is not accepted when it is offered not only will there be no pay but the person is unlikely to be offered any further work in the future. So, in practice, people rarely refuse work when it is offered.
The profits companies stand to make from the self-employed similarly means that in most cases the company is obliged to offer work to stay in business. An article in the Guardian dated 18 July 2016 on delivery firm, Hermes, revealed that pre-tax profits of £36 billion in the year February 2015 was the product of a workforce of couriers, 84% of whom were self-employed!
The question then is, can a company write into a contract terms which would prevent someone from claiming they are a worker?
Generally a written contract is seen as sacrosanct when determining the working relationship.
In Stevedoring and Haulage Services Limited v Fuller and Ors, (albeit a case which concerned employee status rather than worker status), the contractual terms expressly stated that work would be provided on an ad hoc basis with “no obligation on the part of the company to provide work nor for [you] to accept any work so offered”. The Court said that there was no scope for implying a positive obligation on the parties to offer work and for work to be accepted where to do so would contradict the express terms.
But that was back in 2001. Today the Courts take a dim view of employers relying on contractual terms to deny workers employment rights where the terms do not reflect the reality of the working relationship.
Contracts which do not represent the reality of the situation are now recognised to be sham contracts. A sham contracts as expressed in the case of Consistent Group Limited v Kalwak is a contract where “the reality of the situation is that no one seriously expects that a worker will seek to provide a substitute or refuse the work offered, the fact that the contract expressly provides for these unrealistic possibilities will not alter the true nature of the relationship”.
In many cases for workers in the new “gig economy” the written terms or the written contract will not represent the reality. Anyone unsure of the status of their working relationship and associated employment rights should join and seek the advice of a trade union who can advise on this hugely important issue.
Employment Rights Box
|Statutory Rights||Employee||Worker||Self Employment|
|Fixed Term Employment||Y|
|National Minimum Wage||Y||Y|
|Part time work||Y||Y|
|Right to be Accompanied||Y||Y|
|Unlawful deduction from wages||Y||Y|
|Protection from discrimination because of a protected characteristic||Y||Y||Y|