New UK Supreme Court Judgment: Pimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29: who is a worker

This appeal considered whether the respondent was a ‘worker’ within the meaning of the Employment Rights Act 1996 and the Working Time Regulations 1998, reg 2.Between Aug 2005 and Apr 2011 the respondent, who is by trade a plumbing and heating engineer, did work for Pimlico Plumbers Ltd.In Aug 2011 the respondent issued proceedings against Pimlico and Mr Mullins in an employment tribunal, alleging that he: had been an “employee” of Pimlico under a contract of service within the meaning of the Employment Rights Act 1996, s 230 (1) as such he complained, among other things, that Pimlico had dismissed him unfairly contrary to s 94(1) of it; and/or• that he had been a “worker” for Pimlico within the meaning of s 230(3) of the Act and as such he complained that Pimlico had made an unlawful deduction from his wages contrary to s 13(1) of it; and that he had been a “worker” for Pimlico within the meaning of the Working Time Regulations 1998 (SI 1998/1833) reg 2(1) and as such he complained that Pimlico had failed to pay him for the period of his statutory annual leave contrary to reg 16 of them; and that he had been in Pimlico’s “employment” within the meaning of the Equality Act 2010, s 83 (2) (a) and as such he complained that both Pimlico and Mr Mullins had discriminated against him by reference to disability contrary to s 39(2) of it and had failed to make reasonable adjustments in that regard contrary to s 39(5) of it.The employment tribunal decided that the respondent had not been an “employee” of Pimlico under a contract of service, and it further held: (a) that he had been a “worker” within the meaning of s 230(3); (b) that he had been a “worker” for Pimlico within the meaning of reg 2(1) of the 1998 Regulations; and (c) that he had been in Pimlico’s “employment” within the meaning of the Equality Act s 83(2)(a). Were the decisions on these three threshold issues to be upheld, the result would be that the respondent could proceed with the complaints referred to above.Pimlico brought an appeal against the tribunal’s three further decisions to the EAT, which was dismissed, and a further appeal to the Court of Appeal, which was also dismissed. Pimlico appealed to the Supreme Court, which was in substance a further inquiry into the entitlement of the tribunal to have made the three decisions referred to above. Pimlico argues that the tribunal’s reasoning in support of them was inadequate and it asks the Court to set them aside and to direct the tribunal to reconsider the three threshold issues.The Supreme Court dismissed Pimlico’s appeal, with the result being that the substantive claims of the respondent as a limb (b) worker could proceed to be heard in the tribunal.It was necessary for the respondent to have undertaken to personally perform his work or services for Pimlico, and the company be neither his client nor his customer.

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