The European Court of Justice (ECJ) has given some clarity on the above matter in the UK case of B v Yodel, where a Yodel courier(C) claimed that he was a “worker” under the Working Time Regulations (WTR) and thus, amongst other things, entitled to be paid statutory holidays provided for by (WTR)s, despite his contract indicating that he was self-employed and thus not covered by (WTR).
The written contract reflected the status of an independent contractor as (a) C could provide a substitute to carry out the work but subject to Yodel vetting the choice of substitute if they did not have sufficient skill or qualifications (b)there was no mutuality of obligation ie no right to be offered work and C could decline any work that was offered (c) C could work for other couriers, even potential competitors of Yodel (d) C could organise his own working day to suit his business needs and (e) C was personally liable for any acts or omissions of the substitute.
The ECJ reviewed previous case law and reconfirmed the test to be applied for worker status namely there to be on the facts evidence of subordination ie performing services for and under the direction /control of another person in return for remuneration and decided that it was up to national courts to decide employment status in such circumstances but suggested that C appeared to them to be genuinely self-employed person, in particular he appeared to have a "great deal of latitude", where such independence did not appear to be fictitious.
This case does not alter existing UK case law but does confirm that genuine arms-length arrangements with the types of factors as above can defeat claims to worker status.
The Supreme Court is due to hear the Uber case later this year and is likely to provide further guidance on the matter.
The article is intended for general information purposes only and should you have any further queries on the matter, please do not hesitate to contact our HR/legal advice-line team on 01455852028.