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Worker Status, Working Time and the Gig Economy – Questions for the CJEU

On 18 September the Watford Employment Tribunal in B v Yodel Delivery Network Limited made a referral to the CJEU to answer questions surrounding the employment status of couriers. In particular, the queries relate whether the interpretation of the term worker adopted by the law of England and Wales is consistent with the case law of the CJEU.

The standard terms of Yodel’s Courier Services Agreement, much like those of their competitors, make it clear that all couriers are self-employed independent contractors, not employees or workers.

The Claimant brought a claim to the Tribunal on the basis of his employment status. Whilst he accepted that he was self-employed for tax purposes, the Claimant was not of the opinion that the term correctly reflected his true employment status.

The law of England and Wales provides that an individual cannot be deemed to have ‘worker’ status where there is no contractual obligation to provide a ‘personal service’.

The EU law perspective on working time is contained within Article 2 of Working Time Directive 2003/88/EC (the Directive), which defines working time as “any period during which the worker is working, at the employer’s disposal and carrying out his activities and duties, in accordance with national laws and/or practice.”

What has the CJEU been asked to consider?

Is the requirement of ‘personal service’ adopted by the law in England and Wales within the scope of the Directive?

Further matters of consideration will be:

Worker status

Whether the following matters are material to the establishment of ‘worker’ status:

  • The right to engage sub-contractors;
  • The exercise of the right to sub-contract;
  • The fact that other corporate entities such as limited companies and limited liability; partnerships are engaged on materially the same terms;
  • The ‘employer’ is not obliged to offer work nor is the individual obliged to accept;
  • The individual is not restricted to work only for the ‘employer’ and may work for third parties performing similar services;
  • The exercise of the right to perform similar services for third parties and whether others engaged on materially similar terms have done so.

Working time

  • The calculation of working time in a scenario where the individual in question does not work fixed hours and is free to determine their own working hours within parameters set by the ‘employee’.
  • The situation whereby an individual may work for the employer and a third party performing similar services during the same set parameters of working hours and may perform services which are beneficial to both the employer and the third party, such as driving.
  • The calculation where an individual has a lot of flexibility in the mode of delivery of work and may tailor their work to suit their own personal convenience, not the interests of the employer.

It is hoped that the CJEU will be able to provide some clarity for ‘gig economy’ workers and their employers.

 

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.