Mr Gascoigne worked as a cycle courier for Addison Lee from 2008 until 2017. Addison Lee provides private-hire taxis as well as courier services including bicycle, motorbike, car and van couriers.
His contract provided he was an independent contractor, and was not an employee, worker, agent or partner of Addison Lee. It also provided that he could choose the days and times he would be available but there was no obligation on Addison Lee to offer work or on him to accept it when offered. However, he would be deemed to be available and willing to provide work at any time he was logged into an Addison Lee computer or app.
Mr Gascoigne’s working pattern was variable and took full advantage of the flexibility on offer. He would generally pre-book holiday although there were no formal consequences if he failed to do so as the work would be picked up by other couriers. The couriers were paid a piece-rate that was determined by Addison Lee, and it was not open to the couriers to negotiate higher rates. They were also paid a fixed rate for waiting time. They had sums deducted weekly in respect of insurance and an admin fee.
When a courier was working they would log onto the app and would also contact the controller at Addison Lee by telephone or radio. They would then be in constant contact and the controller could see his whereabouts by GPS tracking. There was no decline button on the app, and so the expectation was that if a courier was given a job they would do it.
Mr Gascoigne brought a claim in the Employment Tribunal against Addison Lee on the basis that he was a worker, and therefore entitled to holiday pay. The Employment Tribunal agreed.
The tribunal held the contract between Mr Gascoigne and Addison Lee did not portray the relationship correctly. The reality was that Mr Gascoigne was expected to carry out work for Addison Lee. Furthermore he performed the work personally, and not because Addison Lee was his customer. The tribunal referred to the company’s armies of lawyers doing the best job possible to ensure he did not have worker status which was designed to frighten him off from litigating and suggests they knew the risk of portraying Mr Gascoigne as self-employed.
The tribunal rejected the Addison Lee’s argument there was no contract because Mr Gascoigne had the option to turn down any job that was offered. The reality was he worked almost continuously for the company while logged on, and the fact he was allowed to turn down a job on occasions did not negate the existence of a contract.
A similar case against Deliveroo has recently been heard in the Employment Tribunal, with judgment still awaited. However, unless there are significant differences between Deliveroo’s business model from those of other gig economy businesses such as Uber, Citysprint, Excel and Addison Lee, a similar result might well be expected.
An appeal in the Uber case is due to be heard by the Employment Appeals Tribunal at the end September 2017, and Pimlico Plumbers have recently been given leave to appeal their case to the Supreme Court.