Boxer v Excel follows a string of other similar rulings in deciding that an individual who was engaged by a gig economy organisation as a self-employed contractor was, in fact, a worker and therefore entitled to holiday pay.
The case emphasises again that the Employment Tribunal will look beyond what is written in the contract and look at the factual matrix in deciding the employment status of an individual. Boxer’s contract set out that he was a contractor and he was registered as self-employed with HM Revenue and Customs (HMRC). When the tribunal delved into the reality of the situation, however, it found that Boxer was not running his own business but was under the direction and control of courier organisation Excel.
The tribunal decided that Boxer was a ‘worker’ because: most of the time he worked five days a week, approximately nine hours a day; he was expected to tell the organisation in advance when he was planning to take time off; on the days that he worked, he was expected to be available throughout the working day and there was no flexibility during that time; he was paid according to a fixed rate for the work that he did; he did not have to bear the cost of any damage in transit or pay insurance; he was not actually permitted to use the substitution clause in his contract; and although he provided his own bicycle, mobile phone, and protective clothing, the courier organisation provided him with a radio and app to install on his phone.
There is now a growing body of case law that establishes that those working in the gig economy are actually workers and therefore are entitled to basic employment rights such as holiday pay, the national minimum wage, and rest breaks. The government has commissioned a Review of employment practices in the modern economy to consider the recent developments and what changes need to be made to the law. This will be published later on this year so watch this space.
Louise Lawrence is senior associate at law firm Winckworth Sherwood