One of the most important legal cases in the battle for worker rights in the so-called gig economy has now been settled at the Supreme Court, which this week ruled in favour of workers. While the Pimlico Plumbers ruling isn’t necessarily a game-changer in providing clearer guidance on gig economy employment law, it is a definite step forward for workers.
Gary Smith was one of 380 tradesmen working for Pimlico Plumbers, a London-based domestic maintenance firm providing a 24-hour service fixing anything from a broken boiler to a collapsed garden wall. Pimlico Plumbers is the Uber of the plumbing business, and Smith worked for the firm for six years before suffering a heart attack.
The firm was founded and is run by the hard-charging Charlie Mullins, who can often be seen travelling around London in his bright blue Bentley adorned with vanity plates that read CH4RLE. Mullins was awarded an OBE in 2014 and once described himself as a “Thatcher-era entrepreneur”. The day Thatcher died, workers at Pimlico Plumbers were all made to wear black armbands, according to a company press release.
When Mr. Smith asked to reduce his hours due to ill health, Pimlico Plumbers refused and eventually repossessed his company-provided work van. In 2011, he filed a claim for unfair dismissal as an employee, discrimination on grounds of disablement, denial of sick pay and holiday pay under both the Employment Rights Act and the Equality Act. Indeed, the Equality and Human Rights Commission funded Smith’s legal costs in the case.
The lower courts rejected Smith’s claim that he was an employee, but did hold that he should be considered a “limb (b)” worker. Limb (b) worker rights do not provide protection against unfair dismissal or the right to sick pay, but they do guarantee the minimum wage and holiday pay. This decision was upheld through the Employment Appeals Tribunal, the Court of Appeal and now the Supreme Court.
The so-called “limb (b) worker” protection is a sort of half-way house between full employment and true self-employment. Limb-b workers are indeed self-employed but, crucially, are not considered in business on their own account, but work within the domain of someone else’s business.
I have personal experience of this. In my own case against Uber in 2016, the minicab firm claimed I, too, was self-employed on my own account. However, the judge ruled in our favour, noting that I could not set the price for my work and didn’t know who my customer was, and that, because I was effectively performance-managed through a ratings system, I was penalised if I didn’t accept work and had to follow routes set by Uber. I was in a vulnerable position working for Uber so limb (b) protections provide a vital safety net to prevent exploitation.
At the other end of the scale, professional footballers and highly skilled management consultants may also be limb (b) workers. The protections are the same but rarely is there a need for highly skilled, well-paid workers to call on them in the way precarious workers desperately need to.
Pimlico Plumbers relied heavily on contract terms, which the courts found did not reflect the reality of work practices at the firm. The Supreme Court was scathing, saying the contract was “carefully choreographed.” The ruling said, “on the one hand, Pimlico wanted to present their operatives to the public as part of its workforce, but on the other it wanted to render them self-employed.” You could almost hear the exasperation from the bench with these too-clever-by-half tactics, noting that Pimlico Plumbers “put before the tribunal an irrelevant contract, cast in highly confusing terms, and now complains that the tribunal’s interpretation of them was highly confused.”
Pimlico Plumbers argued that Smith, although required to work set hours, was free to reject work and to send a substitute on his behalf. The ability to send someone else to work in your place until now was considered a watertight legal test of true self-employment – and a loophole mercilessly exploited by gig-economy employers such as Deliveroo. The ruling now offers some relief by possibly lowering the bar in recognising that some substitution can occur without compromising limb (b) worker designation, so long as personal service remains the “dominant feature” of the working relationship.
When contract trickery fails in court, like it has done spectacularly for Uber and Pimlico Plumbers, the next line of defence is to complain bitterly that the law has been rendered obsolete by technology and changing work practices. But has it really? The court reminded us the law is wiser than sometimes acknowledged: “As long ago as 1875, parliament identified an intermediate category of working people falling between those who worked as employees under a contract of service and those who worked for others as independent contractors.” The problem, then, is not the law, but the government’s complete lack of will to enforce it.
Some will be disappointed that the Supreme Court didn’t provide more definitive guidance but for workers, this ruling is nonetheless very much a win. It offers cold comfort to Uber and Deliveroo in their upcoming legal proceedings to defend their fanciful worker contracts – which Frank Field MP once described as “gibberish.” Once again, we are reminded what matters is how things really are on the shop floor, not how an army of lawyers would like us to think they are on paper.
The battle for the gig economy will continue to rage on, not just in the courts but also in the parliamentary lobby and the media. Pimlico Plumbers’ flamboyant owner, Charlie Mullins, attacked the decision as “cowardly” and a “missed opportunity to rectify our out of date employment law and bring it into the 21st century”. Mr Mullins is a top Tory donor and has now called on the government to “do something about it” and says he “hopes he can be part of that”.
In the meantime, Gary Smith told media assembled outside the Supreme Court he’d celebrate his well-earned victory with “stiff drink”.
James Farrar is chair of the Private Hire Drivers branch of the Independent Workers’ Union of Great Britain, and was the co-claimant in Aslam & Farrar vs Uber.