03 Apr 2017
An Employment Tribunal has found that a courier for Excel is actually a worker, following a claim regarding holiday pay.
Andrew Boxer, who started working for the courier service in September 2013, argued that he was entitled to one week of holiday pay, with the Tribunal ultimately considering his claim “well-founded”. Mr Boxer launched his claim after he was not paid for a week’s holiday taken in March 2016, with the tribunal stating that Excel “unlawfully failed to pay the claimant”.
Claims arising from the “gig economy” are quickly gaining momentum, with several heard this year alone. This latest decision is the latest of a number in which it has been found that the firm involved had obligations to persons they considered self-employed. The contracts between Mr Boxer and Excel referenced ‘contractor’ and ‘sub-contractor’ status during the years of engagement, but the tribunal ruled that this did not accurately reflect the reality of the working situation or relationship.
Paul Holcroft, Head of Legal and Advisory at Croner, reminds that while written contracts are vitally important and form an axis to support employers, the working reality will always bear more weight when it comes to identifying status. “A written contract is vital and will usually be strong evidence that the organisation is following correct procedure,” Paul says. “However, if the written clauses are not reflected in reality, the contract is little more than a piece of paper, and will count for little in a court or tribunal in the event of a claim. “The gig economy has attracted a significant amount of attention recently.
The CIPD’s ‘To gig or not to gig’ report highlighted confusion among gig economy workers, and the volume of tribunal cases highlight confusion among firms and employers who are engaging those workers. “All of the recent reports and rulings surrounding the gig economy are giving the same clear message: organisations need to take action now. “If there is any confusion or doubt about status, or the working relationship between two parties, steps should definitely be taken before repercussions occur.
“Reportedly, Mr Boxer didn’t query his contract as he felt it wouldn’t have made a difference and that he would’ve been laughed at if he had challenged the clauses within it. Employers should take this on board, and proactively ensure that a) working status is clear among staff, and b) they are approachable, should any of their workforce feel otherwise.”
Mr Boxer argued that he was a “worker” during his time at Excel, as defined by the Employment Rights Act. Under various enactments workers are entitled to basic rights including holiday pay and the national minimum wage.
Mr Boxer’s claim was backed by the Independent Workers Union of Great Britain (IWGB). Download of free employment status factsheet here for a clear explanation of worker, employee and self-employed, or call 0844 561 8107 for free initial advice.
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