Tribunal seeks ‘worker’ status clarification from EU

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An employment tribunal is seeking clarification from the European Court of Justice on the proper interpretation of the “worker” classification under EU law – particularly around a gig-economy worker’s right to use substitutes and whether this means they cannot be regarded as a “worker”.

The Watford employment tribunal referred a series of questions to the ECJ while considering the employment status of a Yodel couriers, as it believed the way worker status is determined under UK law might be “incompatible” with how it is viewed under EU legislation.

It has asked the ECJ whether the fact that an individual has the right to engage “substitutes” to perform all or part of their work means they cannot be considered a worker under the Working Time Regulations 1998.

The question was raised during the tribunal’s consideration of the employment status of a Yodel parcel courier. The individual uses his own vehicle and mobile phone, does not wear a uniform or have any branding on his vehicle and does not carry any form of identification provided by the company, but he does use a branded handheld scanning device provided by Yodel.

He is not obliged to carry out the deliveries personally, but is permitted to use a subcontractor to perform all or any part of the service he is contracted to provide. He is also allowed to deliver parcels for other firms, including at the same time as working for Yodel – for example, carrying parcels for multiple parcel delivery companies in his van.

When he began his role in 2017, he signed a contract that expressly stated that such couriers are self-employed independent contractors and not employees or workers. He argues that this is not an accurate categorisation of his employment status and he should be considered a “worker” because he has never subcontracted his work for Yodel or made deliveries for other firms.

In its submission to the CJEU, the tribunal notes that UK law requires a person with worker status to “undertake to do or perform personally any work or services” for the organisation. It says the entitlement to perform services for a number of different clients is inconsistent with this status under UK law.

It also asks whether the individual is only regarded as a worker when actually performing work or services themselves for the organisation.

The tribunal says: “UK law focuses on the contractual rights and obligations of the putative worker and employer. Moreover, absent a contractual obligation to provide ‘personal service’ an individual cannot be regarded as a worker. Put another way, a general and unfettered right to sub-contract the performance of the work or services – even if unexercised by a particular claimant – is fatal to a claim of worker status.

“This may not be compatible with EU law and in particular the interpretation given to the term ‘worker’ in the case law of the [ECJ].”

It also wants clarification around how working time is to be calculated in circumstances where the individual is free to determine their own working hours within certain parameters.

The ECJ’s ruling could have a major impact on the gig economy and how worker status is determined in the UK.

Tribunal judge Andrew Clarke adds in his reference to the ECJ: “The questions posed…are intended to enable the [Court of Justice of the European Union] to determine whether there are such inconsistencies and to give further guidance on the proper interpretation of the term ‘worker’ in EU law in the light of the facts of this case.

“The facts of the case, ones typical in the case of those working in the so-called ‘gig economy’, also give rise to problems associated with the computation of working time which the CJEU has not yet been called upon to address and which cannot be answered by inferences from existing case law.”

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