Addison Lee drivers were workers, not self-employed

The Employment Appeal Tribunal has upheld an employment tribunal decision that Addison Lee private hire drivers were workers entitled to holiday pay and the National Minimum Wage. 

Facts

In Addison Lee v Lange and others, the drivers’ contracts described them as independent contractors and stated that nothing in the contract rendered them an employee or worker.  The contract also stated that the drivers could choose the days and times when they would be available for work.  Addison Lee was under no obligation to offer work and the drivers were under no obligation to accept work offered.  However, when logged on to the system the drivers were deemed available and willing to provide their services.   

In practice, when notified of a job via the system the driver had to accept it straightaway.  If they did not and could not provide an acceptable reason they could face sanctions.  Drivers could log off whenever they wanted to so long as they were not transporting a customer. Although Addison Lee did not promise to provide a specific amount of work, drivers were told that they could expect to work around 50 to 60 hours per week. They needed between 25 to 30 hours a week to recover the cost of the vehicle they had to hire from an associated company.  

The drivers claimed paid holiday and the National Minimum Wage and so had to show that they were workers.

The employment tribunal ruled that they were workers and were working during all the time they were logged on to the system regardless of whether they were actually working. Addison Lee appealed to the Employment Appeal Tribunal (EAT).

Decision 

Were they workers?

The EAT had to consider whether the drivers undertook to perform any work, as this was key to establishing that they were workers.  It ruled that the employment tribunal had been entitled to disregard the terms of the contract as it did not reflect the true agreement between the parties.  

It upheld the employment tribunal’s decision that when logged on to the system the drivers were undertaking to accept the driving jobs allocated to them.  This was consistent with its finding that if they did not accept a job and had no good reason they could face sanctions.  The regular offer and acceptance of work resulting in the drivers working pretty much continuously justified its conclusion that they were workers when working.     

The employment tribunal had also been entitled to find that there was an overarching contract under which the drivers undertook to perform work (so that they were workers even when not working).  Although the drivers had flexibility regarding when they logged on to work, it was  unrealistic to conclude that either party engaged in the arrangements in the belief that the other undertook no obligation at all.  No honest driver would put the company to the expense of training him, checking his credentials and putting him on the system unless he was undertaking to do some work.  Likewise no honest and reputable company would encourage drivers to commit substantial time and money to its training and vehicle hire if it was not undertaking to put the driver on its system and give him a fair opportunity to obtain bookings.  Although these obligations were not spelt out in the contract, the tribunal was entitled to take a realistic approach and find that they existed. 

What counts as working time? 

The EAT went on to uphold the employment tribunal decision that the whole of the time when the drivers were logged on was working time, even though for some of that time they were not actually carrying passengers.  Being logged on was an essential part of the service they provided. 

Implications     

There is nothing new in the judgment.  It is simply the latest in a long line of gig economy cases where people described as independent contractors have demonstrated that they were in fact workers entitled to holiday pay and the National Minimum Wage.  The decision is also in line with the Uber case (and others) on what counts as working time.  The Uber case, considering whether Uber drives are workers, was heard by the Court of Appeal at the end of October and judgment is awaited.  

Following the Taylor Review of Modern Workplaces, the Government accepted Matthew Taylor’s view that the current employment and worker status tests are unclear.  It consulted on clarifying these tests and codifying the existing case law tests into legislation. The Government has not yet announced its proposals as a result of that consultation.