PIMLICO PLUMBERS, UBER DRIVERS,

CYCLE COURIERS, AND COURT TRANSLATORS:

WHO IS A WORKER?

*
JEREMIAS PRASSL

Employment Status is back in the courts: the rapidly increasing

prevalence of work arrangements once considered ‘atypical’ in the UK
labour market – from zero-hours contracts to digitally mediated work
in the ‘gig’ or on-demand economy – has led to a flurry of recent
decisions grappling with the scope of employment and discrimination
law. Four cases have attracted particular attention: Secretary of State for
Justice v Windle & Arada [2016] EWCA Civ 459 and Pimlico Plumbers
Ltd v Smith [2017] EWCA Civ 51] at the appellate level, as well as
Aslam & Farrar v Uber (2202550/2015), and Dewhurst v Citysprint UK
Ltd (2202512/2016) at first instance. They have received broad
coverage for their (mostly) worker-protective outcomes, grappling
with the same, beguilingly simple, question: who is a worker?

This note has a narrower, technical focus: it highlights a series of

potential problems in the Court of Appeal’s decisions in Windle and
Pimlico, particularly when seen in the light of previous Supreme Court
authority and Parliamentary intention.

The structure of English employment law today has long

outgrown the traditional ‘binary’ divide between employees working
under a contract of service and thus entitled to the full range of
employee-protective norms, and independent contractors, self-
employed under contracts for services beyond the scope of
employment law.

*
This is a pre-copyedited draft of a forthcoming note (Law Quarterly Review [2017]).
I am grateful to David Cabrelli, Hitesh Dhorajiwala, Mark Freedland, Ewan
McGaughey, Peter Mirfield, and an anonymous referee for comments.
jeremias.prassl@law.ox.ac.uk | @JeremiasPrassl

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 Who is a Worker? 2

Through a series of statutory interventions, Parliament has

extended the scope of key employment norms to a broader group of
workers. Our taxonomy of employment rights comprises three
categories, in expanding order: ‘employees’, working under a contract
of service or employment (section 230(1) ERA), come within the full
scope of protective measures once relevant qualifying periods have
been met, including notably unfair dismissal protection. The next
category, in extensive use since the late 1990s, is ‘worker’ status with
entitlements including working time and national minimum wage
protection. Workers are defined in section 230(3)(b) Employment
Rights Act 1996 (‘ERA’) as those working under ‘any other contract …
whereby the individual undertakes to do or perform personally any
work or services for another party to the contract whose status is not
by virtue of the contract that of a client or customer of any profession
or business undertaking carried on by the individual.’ Materially
identical definitions apply under the National Minimum Wage Act
1998 (section 54(3)(b)) and the Working Time Regulations (SI
1998/1833, reg 2(1)). In the anti-discrimination context, an even
further extension has long been applied, and was taken over into the
Equality Act 2010 (‘EA’), which includes in its definition of
‘employment’ contracts of employment and apprenticeship, as well as
any ‘contract personally to do work’ (section 83(2)(a)).

Most employment claims will be brought under a combination of

these provisions. In Windle, the claimant court interpreters had been
employed on a ‘case-by-case basis’ by Her Majesty's Courts and
Tribunals Service, and were complaining of racial discrimination
contrary to the Equality Act 2010. Pimlico Plumbers similarly
concerned a (disability) discrimination claim, as well as complaints
under the Employment Rights Act and working time legislation. In
Uber, current and former drivers working through the eponymous
car-hailing ‘app’ alleged a failure to comply with minimum wage and
working time provisions, as well as detrimental treatment in
retaliation for ‘whistle-blowing’. Citysprint, finally, concerned a cycle
courier’s claim for unpaid holiday pay. These claims all hinged on

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 Who is a Worker? 3

worker status under one or several of the definitions set out in the
previous paragraph, and with the exception of the court interpreters
in Windle, the claimants succeeded in asserting that they had been
engaged as ‘workers’ by the respondent businesses.

Taken together, this quartet raises (and re-visits) a series of

fundamental questions about worker status in English law: first,
should the different statutory extensions found in the Employment
Rights Act 1996 (as amended) and the Equality Act 2010 be read as
essentially synonymous? Second, what is the relationship between the
statutory extensions and the more traditional category of employee
status? Finally, should mutuality of obligations be applied as a
criterion in determining whether an individual falls within the
extended categories?

The first controversy surrounding worker status concerns the

relationship between competing statutory extensions. The statutory
terminology is somewhat confused – the ERA defines the ‘worker’,
whereas the EA’s definition is that of ‘employment’. On the face of the
statutory provisions, worker status under the Equality Act is a
separate category from the ERA ‘worker’: the contract personally to
do work is not qualified with the ‘business exception’ found in the
Employment Rights Act definition.

The Court of Appeal, on the other hand, has increasingly regarded

the terms as synonymous. In Pimlico Plumbers, Underhill LJ asserts
that ‘it is now established that the criteria [for section 230(3)(b)
worker status] apply equally to the more economical language of
section 83(2) of the 2010 Act’ ([123]); a similar observation can be
found in His Lordship’s judgment in Windle ([8]). The common
source for these propositions is the Supreme Court’s decision in Jivraj
v Hashwani [2011] UKSC 40, where arbitrators had been held to fall
outside the scope of the Equality Act, as well as a brief reference to the
latter case in Baroness Hale’s speech in Clyde & Co LLP v Bates van
Winkelhof [2014] UKSC 32.

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 Who is a Worker? 4

It is submitted, with respect, that these authorities cannot

necessarily bear the weight of that conclusion. The starting point for
any court seeking to ‘drink from the pure waters of the statute’
(Windle, EAT [2]) is the legislative distinction between the ERA
‘worker’ category (personal work contract, subject to the business
exception) and the broader EA ‘employment’ category (any contract
personally to do work). Jivraj was concerned with interpreting
Equality Act ‘employment’; no reference to ‘worker’ status under the
Employment Rights Act can be found in the reported decision. The
decision has been subject to trenchant criticism for its narrow
interpretation of the Equality Act employment extension (M.
Freedland and N. Kountouris, (2012) 41 ILJ 56) – criticism, that is, for
its near-elision of section 83(2) EA with the much narrow employee
category in section 230(1) ERA (S. Deakin and G. Morris, Labour Law
(6th edn Hart 2012) 177), rather than with the ‘worker’ category.

In Pimlico Plumbers, a ‘business exception’ was further said to be

‘implicit in section 83(2) EA ‘as a result of the jurisprudence of the
European Court of Justice’ ([48]) – a conclusion which is hard to
square with the Luxembourg court’s broad approach to the personal
scope of the underlying Directives (H. Dhorajiwala (2017) 46 ILJ
nnn).

Bates van Winkelhof, on the other hand, was concerned exclusively

with a claim for ERA ‘worker’ status. It is true that Baroness Hale
made a brief reference to Jivraj, noting in passing that ‘a similar
qualification [had there] been introduced’ through ‘the concept of
subordination’ ([31], [32]). She went on, however, to denounce the
addition of any such ‘mystery ingredient’ ([39]).
As regards the first question, then, the assertion in both Windle
and Pimlico that the wide ‘employment’ category in the EA should be
read as synonymous with the slightly narrower ‘worker’ concept in
the ERA does not follow automatically from the cited Supreme Court
authorities. If anything, a close reading reveals the opposite: whilst
Jivraj did narrow section 83(2) with an emphasis on the language of

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 Who is a Worker? 5

‘employment under … a contract personally to do work’ ([23]), the

purposive approach in the subsequent decision in van Winkelhof
suggests a move towards broadening the statutory extensions in line
with Parliament’s clear intention in ‘expressly enact[ing] an extension
to what would otherwise be the natural and ordinary meaning’ of
employment ([27]). Any elision of the categories based on Baroness
Hale’s obiter observation should thus be seen as a welcome challenge
to the restrictive Jivraj approach, expanding EA ‘employment’ in order
to match the purposive breadth of the ERA ‘worker’. Such a broad
approach might also be attractive from a rule of law perspective,
improving clarity and certainty for potential litigants.

The second issue at stake is the relationship between the extended

statutory categories (sections 230(3)(b) ERA and 82(3) EA) and the
core definition of the employee, working under a contract of
employment (section 230(1) ERA). Over the years, a large body of
case law developed to define the contract of service (J Prassl, The
Concept of the Employer, OUP 2015, 26ff). To what extent, if at all,
should the same tests be used in determining whether an individual is
a worker, or employed for purposes of the Equality Act?

Turning first to the relationship between ‘employee’ and ‘worker’

status, Recorder Underhill QC (as he then was) suggested in Byrne
Bros v Baird [2002] ICR 667 (EAT) that the difference was to be
understood as one of degree, not kind:

‘Drawing the distinction in any particular case will

involve all or most of the same considerations as arise
in drawing the distinction between a contract of service
and a contract for services – but with the boundary
pushed further in the putative worker’s favour’
([17(5)]).

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 Who is a Worker? 6

In Windle, His Lordship returned to ‘borrow the language of [his]

own judgment’, and suggested that the Byrne Bros approach applied
equally to the relationship between ‘employee’ and ‘EA employment’
status:

‘The underlying point is the same. The factors

relevant in assessing whether a claimant is employed
under a contract of service are not essentially different
from those relevant in assessing whether he or she is an
employee in the original sense’ ([24]).

This conclusion is difficult to square with recent Supreme Court

authority and the underlying intention of Parliament. In van
Winkelhof, Baroness Hale explicitly noted that ‘the question of
whether [individuals] can also be workers … would be a very different
question from whether they can be employees’ ([26]). As I have
argued previously ((2014) 43 ILJ 495, 502), this was a welcome
departure from the Byrne Bros approach: Her Ladyship is clear that the
distinction between employees and the extended status definition in
section 230(3)(b) ERA is one of kind, rather than degree. The ‘worker’
category is designed to catch a much broader constituency, which the
received tests for employee status would leave behind – even if the
‘passmark is lower’ (Windle [24]). Whilst there is no similar explicit
authority as regards the correct approach to the construction of
section 83(2) EA, the underlying point is indeed the same: if anything,
that category is designed to be even broader than ‘worker’ status.

The narrow scope of the extended categories which would result

from the approach suggested by Underhill LJ would furthermore go
against express Parliamentary intention – as explicitly recognised by
His Lordship fifteen years ago: ‘the policy behind the inclusion [of
additional statutory categories] … can only have been to extend the
benefits of protection’ (Byrne Bros [17(4)]). This conclusion has been
cited extensively by the Courts, including in the ET’s Uber ([75]) and
Citysprint ([76]) decisions, and was expressly endorsed by Baroness

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 Who is a Worker? 7

Hale in van Winkelhof ([33]). Using the same tests for all three
categories, albeit with lowered passmarks, would result in many
‘atypical’ workers’ being denied access even to the most basic of
employment and discrimination rights – as the outcome in Windle
itself shows: there was no dispute that the translators were employed
under a contract, and performed their duties personally – yet they
could not bring themselves within the scope of section 83(2) EA (see
now also Capita Translation v Siauciunas, EAT judgment of 12
February 2017).

These outcomes were driven by one criterion in particular:

mutuality of obligation. Its relevance to the extended statutory
categories sits at the heart of the appeal in Windle, and played a key
role in Underhill LJ’s speech in Pimlico Plumbers. Mutuality of
obligation is frequently (if controversially) deployed by the Court of
Appeal as a criterion for employee status under section 230(1) ERA
and its predecessor provisions, requiring an ‘umbrella’ relationship
connecting individual assignments: as Dillon LJ explained in
Nethermere v Gardiner, ‘there is one sine qua non which can firmly be
identified as an essential of the existence of a contract of service and
that is that there must be mutual obligations on the employer to
provide work for the employee and on the employee to perform work
for the employer’ ([1984] I.C.R. 612 (CA) 632).

The Employment Tribunal in Windle had focussed on the fact that

‘there was no obligation to accept any next assignment’, i.e. a lack of
mutual (umbrella) obligations between the translators and HMCS.
This was said to ‘suggest a lack of direction and subordination … or,
put another way, supports the conclusion that these Claimants were
independent providers of services’ ([165]). The Employment Appeal
Tribunal ([2015] ICR 156) overturned that finding. Judge Clark
emphasised the importance of drawing a clear distinction, both in
employment generally and under the Equality Act 2010 in particular,
between employment under a contract of employment and the
broader categories of ‘limb (b)’ or ‘category (b)’ workers, respectively

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 Who is a Worker? 8

([50]). In the EAT’s judgement, ‘lack of mutuality is relevant to the

former and not to the latter’ ([54]).

In reinstating the original decision, Underhill LJ firmly rejected

this exclusion ‘in limine’ of (umbrella) mutuality as a criterion for the
extended statutory categories, suggesting that it was ‘a matter of
common sense and common experience that the fact that a person
supplying services is only doing so on an assignment-by-assignment
basis may tend to indicate a degree of independence, or lack of
subordination, in the relationship while at work which is
incompatible with employee status even in the extended sense’ ([23]).
His Lordship came to a similar conclusion in Pimlico Plumbers: ‘it
should not be assumed that if there had been no such legal obligation
[to work set hours] the evidence about what hours he worked in
practice would have been irrelevant’ ([145]).

This extension of mutuality beyond employee status, however, is

deeply problematic – for three reasons. It is built, first, on the already-
discussed fallacious assumption that the three statutory categories of
employee, worker, and EA ‘employment’ are fundamentally the same
(Windle [24]). The Supreme Court in van Winkelhof, however, held
that in determining extended category status, the courts are simply to
apply the statutory tests, which are different from the common law
criteria for employee status.

More importantly, mutuality is introduced as a proxy for

subordination, with employment on an intermittent (‘gig by gig’) basis
potentially indicating a degree independence. This is problematic
both as a matter of legal precedent and broader labour market policy:
as Baroness Hale noted in van Winkelhof, while ‘subordination may
sometimes be an aid to distinguishing workers from other self-
employed people, it is not a freestanding and universal characteristic
of being a worker’ ([39]).

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 Who is a Worker? 9

In any event, at least as far as worker status is concerned, what

happens between assignments is not legally relevant to the assignment
itself. As Professor A.C.L. Davies notes in the context of the employee
category, the ‘individual is generally regarded as an employee within
the wage-work bargain. The mutuality of obligation test is irrelevant
here: it only applies where there is more than one wage-work bargain’
([2007] 36 I.L.J. 102, 113; citing McMeechan [1997] I.C.R. 549). And
even if it were otherwise, the opposite conclusion of Underhill LJ’s
suggested result might often be true. The self-employed are a vastly
heterogeneous group – ranging from the Barrister taking her clients’
cases to different courts each day to the zero-hours worker employed
to clean for various chambers in Temple. In all but the very top end of
this spectrum, a lack of promised future work probably leads to higher
degree of subordination, with workers required to tend to their
employers’ every whim for fear of losing their next shift. As
Employment Judge JL Wade noted when discussing courier’s ‘choice
to work when on circuit’ in Citysprint, ‘this is inequality of bargaining
power at work’ ([49]).

It should be noted that on some readings, mutuality of obligations

is nothing more than employment law ‘jargon’ for consideration: as
Professor Hugh Collins has argued, in ‘addressing the question of
mutuality or consideration, the courts and tribunals are … assessing …
whether or not the parties had entered a legally enforceable contract
at all’ ([2000) 29 I.L.J. 73, 76]. In this narrow or ‘consideration’ sense,
mutuality of obligation is of course an important ingredient in the
overall test: the statutory language clearly requires a contract in all
circumstances. Mutuality of obligations in the ‘umbrella’ sense, on the
other hand, has no role to play in determining whether an individual
falls within the extended ERA and EA categories. Any other approach
would set the law on a dangerous course where an increasing number
of labour market participants – from zero-hours contracts to those
working for digital ‘gig economy’ platforms – will no longer enjoy
recourse to even the most basic of employment rights extended to
them by Parliament.

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 Who is a Worker? 10

Every Employment Judge will of course have to consider the full

range of relevant factors before her in interpreting the relationship in
question (Autoclenz Ltd v Belcher [2011] UKSC 41). The word relevant,
however, is the key qualification here: in a search for all factors, no
weight must be given to criteria such as mutuality of obligation in the
‘umbrella’ sense, relevant for employee status alone – as Sir Terence
Etherton MR recognised in Pimlico Plumbers ([110]). The correct
approach is illustrated by the detailed and careful first instance
decisions in Uber and Citysprint. In the former case, for example,
Employment Judge Snelson ‘turn[ed] to the detail of the statutory
language’ and the facts before him to focus on drivers’ obligation to
provide their work personally, and the absence of ‘a contract at arm’s
length between two independent businesses’ to conclude that the
claimants were section 230(3)(b) workers ([93], [94]).

In concluding, a final element of the decisions under review

should briefly be highlighted. All four cases proceeded on the
assumption that the (putative) workers had been treated as self-
employed for tax purposes. The courts’ finding as to worker status
opens a difficult issue as to tax classification: how does the tripartite
arrangement now firmly established in employment and anti-
discrimination law map onto the binary (employee / self-employed)
regime still used by the Exchequer? Changes afoot in government
policy at the time of writing make it difficult to give a clear answer;
the key to any effective resolution of this conundrum lies in the
recognition of just how heterogeneous the UK’s labour market has
become – and that one-size-fits-all solutions are thus unlikely to
achieve their regulatory goals.

Jeremias Prassl
Magdalen College, University of Oxford

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