(Updated 25th May 2021)
Following on from the recent decisions about Uber and CitySprint, now a bicycle courier working for Excel has been declared a ‘worker’ for employment rights and status reasons. And at the bottom we give you the details of the autumn 2017/2018 and 2021 decisions about Addison Lee, a London-based cab and courier company.
Brief facts of the case – Boxer v Excel Group Services Limited:
- Andrew Boxer worked 9 hours a day on 5 days a week as a cycle courier for Excel Group Services. He started working for them in September 2013.
- His contract described him as a ‘subcontractor’ and Mr Boxer was registered as self-employed with the HMRC.
- When Mr Boxer took a week’s holiday in March 2016 Excel wouldn’t pay him for this so he decided to make a claim for his holiday pay (which was valued at £321.16). Excel then offered to pay him for the holiday but would not agree to change his ‘status’ from self-employed. Mr Boxer asked the Tribunal to decide his employment ‘status’. The Tribunal decided he was a ‘worker’ because:
- He did not have the ability to negotiate his pay and terms – so his bargaining power was unequal to Excel’s. He was paid a fixed rate for his work and he was informed of his pay in a “Driver Memo” which the Tribunal felt was a payslip. He could not agree different terms with the clients he delivered packages too.
- He was required to work 5 days a week reporting to a Controller. He was allocated jobs and expected to pick up the jobs and the deliver them in the order he was told to. He was expected to work and was given a steady stream of jobs. He was also expected to be on stand-by in between jobs at certain locations and be available at all times during the working day.
- He needed to give notice when he needed time off or wanted to change his hours
- He worked mostly for Excel and had no other full-time work – although he did take time off to attend auditions as an actor and did other work for a visa company. His contract with Excel did contain a substitution clause, but this was difficult to use and Excel would have to approve any replacement; so this was never used.
- Mr Boxer did provide his own bicycle, mobile phone and protective clothing, but Excel provided him with a radio and app for his phone and branded clothing.
- The Tribunal found that his status could not be decided by what was written in the contract but should be based on how the employment relationship was actually performed. Mr Boxer was under the direction of Excel and was not an independent contractor running his own business; he was also required to give a degree of commitment to Excel. Mr Boxer argued at Tribunal that if he was not reliable he would lose his job, so therefore he could not be ‘self-employed’, and the Tribunal agreed!
And details of the Addison Lee cases in August and September 2017, May and November 2018 and April 2021:
- Again the Tribunal were looking at whether the Addison staff were ‘independant contractors’ or ‘workers’.
- In Gascoigne v Addison Lee Ltd, August 2017, Mr Gascoigne was a cycle courier who had worked for Addison Lee for 9 years. He claimed he was a worker and entitled to holiday pay. A ‘controller’ allocated him jobs and tracked his whereabouts by GPS and radio, and he was expected to wait on standby through his shift in a specified area. He could turn down jobs if he contacted the controller directly, but he was expected to do the work personally, and if he refused a job the Controller would assign another courier to it. He was given technology and branded bags and t-shirts by Addison Lee.
- In M Lange (and others) v Addison Lee Ltd, September 2017, three minicab drivers also argued they were workers and were entitled to holiday pay and the National Minimum Wage (they said they earned the equivalent of £5 per hour). They were required to work to a detailed manual with performance standards and rules, and could suffer penalties if they failed to meet these standards; and were expected to work regular, long hours (although they were under no obligation to accept jobs) and their contracts said they were not allowed to carry out taxi work for any other company. They were also directed by a Controller and had to wear branded clothing and their cars had to be branded with the Addison Lee logo. The contract the drivers had signed stated they were self-employed contractors
- The Employment Tribunal found in both cases they were workers – and were so entitled to holiday pay, the National Minimum Wage, and also not to have their contracts terminated because they were members of a Trade Union.
- In May 2018, the Employment Appeal Tribunal upheld the Tribunals decision in Addison Lee v Gascoigne, that the cycle courier was indeed a worker. The EAT found that while there was no requirement for Gascoigne to log into the App, once he did he was available to work and he was expected to carry out work as directed by the Controller; this created ‘mutuality of obligation’, i.e. a contractual obligation for Addison Lee to offer work and for Gascoigne to accept it.
- In November 2018, the EAT upheld the Tribunals decision in Addison Lee v Lange & Others. Therefore as workers they are therefore entitled to the National Minimum/Living Wage and Holiday Pay. Addison Lee have not yet confirmed whether it will appeal this decision.
- In April 2021 the Court of Appeal ruled that Addison Lee’s appeal that its drivers were workers, had no reasonable chance of success, following February’s Uber decision by the Supreme Court.