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Employment status case goes against a rising tide of ‘worker’ decisions

There has been a spate of cases recently extending ‘worker’ rights (for example, the right to paid holiday, to receive the minimum wage and to protection against detrimental treatment for whistleblowing) to individuals who would more traditionally be seen as genuinely self-employed.

These cases include the taxi drivers in Aslam v Uber and the extension of whistleblowing protection to partners of LLPs. In those cases, the courts and employment tribunals have looked in detail at the substance of what the worker actually does, rather than the label which the employer and the individual have placed on the relationship, in order to determine whether the person carrying out the work is a ‘worker’ as defined in the Employment Rights Act 1996.
But now we have a case that bucks this trend. In Gilham v Ministry of Justice, the Employment Appeal Tribunal (EAT) decided that district judges are not workers and do not, therefore, have the protection provided by the whistleblowing legislation.

Tribunal

Gilham, the claimant, had been a district judge since January 2006. She claimed whistleblower protection under the Employment Rights Act on the basis that she was a worker for the purposes of that legislation. However, the employment judge in the employment tribunal decided she was not a worker, as she did not have a contract – she was not an employee either, and was not working under a contract of services. Instead, she was an ‘office holder’, which was “a position of a public nature, filled by successive incumbents, whose duties were defined not by agreement but by law or by the rules of the institution”. She appealed.

EAT

The EAT agreed with the employment tribunal judge. In order to be a worker, one must first have a contract. When considering an office holder, the relevant factors in deciding whether a contract was in existence included the manner of the appointment, the intention of the parties, the way in which the office holder carried out his or her duties, and whether those rights and duties have arisen under a contract or are defined by the office held.

The EAT rejected the approach suggested by Gilham’s lawyers, which was to apply the traditional tests one would look at to determine worker status for those who are working under a contract (such as there being a work offer and acceptance of that offer, mutuality of obligation between the parties for the employer to provide the work and the individual to carry it out, and the level of control exercised by the employer over how the work is performed).

In this case, the EAT believed it was clear there was no intention to create a legal relationship and there was, therefore, no contract. The office holder’s duties were prescribed by statute rather than by a contract; office holders were entitled to remain in post until the age of 70 (subject to being well enough to do so and provided they did not commit an act of misconduct); and they were appointed by the Queen. There was a level of control, including the terms of the appointment, and a requirement to work for a number of days per year, but these could not be negotiated. With no contract, the office holder could not be a worker.

Comment

In a previous case involving part-time workers’ rights, the Supreme Court decided that recorders (part-time circuit judges) were entitled to be considered as workers for the purposes of discrimination legislation. It is perhaps peculiar that in this case, the EAT managed to sidestep this precedent by noting that in the recorders’ case, the Supreme Court did not consider whether or not there was a contract, but instead was looking at law derived from the EU, not UK-derived law under the Employment Rights Act. Many will find this distinction somewhat difficult to fathom given that both cases were looking at the same definition of ‘worker’ – the requirement for a contract to be in place. The circularity of this point is enough to send anyone’s head into a spin.

So, the law has been interpreted widely for Uber drivers, in order to provide them with worker rights, and narrowly for district judges, to restrict their rights. Some would find this confusing; what is clear is that we are unlikely to see the back of employment status claims for some time yet.

Added: 16-11-2016
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