Charlie Mullins: Peoples Hero?

mullins

The biggest employment law story this week is the Supreme Court’s decision in Pimlico Plumbers v Smith, a case I have alluded to previously.

To answer the question in the title of course Mullins is nothing of the sort. Before we get into the specifics it’s worth remembering how the case originated. A person (Gary Smith) contracted to work for Pimlico (and who did so exclusively) dad at that time done so for 6 years. He had a heart attack in January 2011 and sough to reduce his availability for work from five to three days.   In March 2011 they refused that request and this was the basis of the entire claim. Irrespective of the legalities that is a ludicrous, unreasonable and oppressive decision by Pimlico Plumbers. Be that as it may in appealing an Employment Tribunal judgement to the EAT, Court of Appeal and ultimately to the Supreme Court Charlie has done a service to UK workers.

I do not want to discuss the legal reasoning in detail, this has been done extensively already by those more qualified than me, the best I have come across is this analysis by Sarah Fraser Butlin.

However, what I do think is helpful, even if not wholly novel, is the emphasis that the mere existence of a ‘substitution clause’ does not by itself mean a person cannot be a worker or employer for the purposes of Equality Act 2010.  The Supreme Court  set out that it would consider the dominant feature of the contract, which in this case was Mr Smith’s personal performance of work:

The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smith’s contracts with Pimlico was an obligation of personal performance. To the extent that his facility to appoint a substitute was the product of a contractual right, the limitation of it was significant: the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done.

Whilst not ground breaking – the judgement itself was broadly conservative – I think this is a helpful reiteration of the law. An employer cannot rely on ‘sham’ or trivial contractual arrangement to avoid their workers obtaining rights of readdress as workers or employee (in the Equality Act sense).

By way of analogy, in the in the 1970s and 1980 many landlords sought to introduce sham requirements of their tenants (such as the right of a landlord to share accommodation, or even the same bed) not because of any desire to do so but because this would make the agreement a license rather than lease which attracted much lower degrees of legal rights. And so in the 1985 House of Lords case of Street v Mountford the emphasis was on the reality of the arrangement not just what the contract said. It did not decisively matter if a contract says it is a ‘license’ it could still be a lease. Likewise, even if a contract says there is a right of substitution – which if effective – would be likely to take a person outside of the protection to employment law does not mean there is one, or that it is a dominant feature of the contract and the courts will examine the realities of the contract ‘on the ground’. That is not a new development but it is a helpful reminder that even if a contract tells a worker they have no rights that doesn’t make it so.

One final aspect of the case to briefly comment upon is its supposed status as a gig economy case. Charlie Mullins has certainly been on the airwaves telling anyone who will listen that it was not and that Smith received a income of £80k. Darren Newman has said something similar: “It is also worth emphasising that this case really has nothing to do with the gig economy. Pimlico Plumbers (however this case eventually turns out) were providing reliable,  regular and well-paid work to their plumbers. True gig economy cases tend to turn on whether there is any obligation to provide work at all and this case says very little about that.”

On the subject of the case itself  Newman is undoubtedly right, but I do think this case is of some significance for the gig economy legal landscape – notwithstanding the right to supply work issue raised the right to substitution is very much relevant and will be an aid in future case (a case in point is the CAC’s 2017 Deliveroo decision).

So, all in all, by no means a monumental decision but a helpful one nonetheless. And Charlie Mullins is left with egg on his face which is also a plus.

Pimlico Plumbers Visit the Supreme Court

supreme courtIt is only less than two months since Don Lane, a worker for courier firm DPD, died after DPD fined him £150 for having the audacity of attending a necessary hospital appointment.  As a ‘self-employed’ worker workers like Lane have very few effectively no employment rights. For example, fining a worker for attending a disability related medical consultation is potentially disability discrimination but could such a person make such a claim?

A firm such as DPD would probably, as Pimlico Plumbers did in the case that started in the Supreme Court today, say no and the basis of the of that denial is section 83(2)(a) of the Equality Act 2010 which states that a person may make a claim for discrimination if they are in “employment under a contract of employment … or a contract personally to do work”. Since many alleged self-employed workers do have a right of substitution – the ability to ask someone else to do the work (a substitute) – they do not have a contract to personally to do work and therefore they are unable to bring a claim for discrimination. The facts underlying the Pimlico case are worth repeating and bare more than a passing  resemblance to the tragedy that faced Don Lane.

Mr Smith had worked for Pimlico for a few years as a plumber but had a heart attack. He wanted to reduce his hours of work but after making a request to do so which was refused Mr Smith was dismissed. He made a claim for unfair dismissal (which was struck out as he was not an employee), unpaid holiday pay as a worker (under EU law) and discrimination. The ET, EAT and Court of Appeal all found in favour of Mr Smith on the worker and s.83 points but it is this the Mr Charlie Mullin is challenging.

Whilst the judgement on worker status will be important it is the decision of standing to bring claims under the Equality Act that is most important and potentially far reaching.

The law on employment status in the UK is a farce with Parliament mandating that those with the most tenuous status having the least statutory rights to protect them from unscrupulous and domineering ’employers’ whilst employees  who tend to me more secure in employment having the most.

Mr Mullins is doing the media rounds on how the case is different from Uber and his position is common sense but the bottom line is his argument is that workers like Mr Smith who have a claim they have been discriminated against and have had their livelihood’s destroyed should  have no right to claim discrimination at all. That is not common sense, that is naked exploitation.

It is Parliament that have allowed this joke of employment rights (non)protection where the most vulnerable workers are given the lowest level of protection and right of redress to remain in place for so many years and, for all the noises, I do not see that the Taylor Reforms will make any real difference.

I hope that the Supreme Court has the sense to ensure that the attempt of Mullins, who will have every rogue employer in the country rooting for him, to remove most gig economy and self employed workers from the protection of UK anti-discrimination law fails.