Pimlico Plumbers Ltd v Smith

A limb (b) worker is identified by applying the statutory language to the whole relationship. No single factor, including subordination, integration, or the contract’s dominant purpose, is decisive. The tribunal should consider all relevant circumstances, including personal service, control, integration, economic dependence, financial risk, exclusivity and whether the putative employer is genuinely a client or customer.

An unfettered right to substitute is inconsistent with personal service. A limited or conditional power to delegate, including one requiring prior consent, may leave a personal-service obligation intact. A person may work for more than one employer and still qualify as a limb (b) worker.

Mr Smith worked as a plumber for Pimlico Plumbers Ltd under contractual documents describing him as self-employed. The Employment Tribunal found that he was not an employee because the relationship lacked the characteristics of a contract of employment, including sufficient mutual obligations. It nevertheless held that he was a limb (b) worker and that his relationship constituted employment for the purposes of the Equality Act 2010.

Pimlico appealed the worker finding. Mr Smith cross-appealed the employee finding. The central issues were whether the relationship involved an obligation of personal service, whether any right of substitution was unfettered, whether an overarching contract existed, and whether Pimlico was a client or customer of Mr Smith’s business.

1. Both appeals dismissed. The Employment Tribunal was entitled to find that Mr Smith was not an employee but was a limb (b) worker.
2. For employee status, the Tribunal correctly considered the relationship as a whole. The absence of an obligation to provide work where none was available did not prevent a contractual relationship requiring Mr Smith to work a normal week when work was available. The financial risks, responsibility for materials and defective work, self-employed tax treatment, and autonomy in quotations and performance nevertheless justified the conclusion that the relationship was not a contract of employment.
3. For worker status, the starting point was section 230(3)(b) of the Employment Rights Act 1996 and the materially identical definition in regulation 2 of the Working Time Regulations 1998. The inquiry was holistic. No single characteristic, including subordination, integration or dominant purpose, was determinative. A person could work for more than one employer and still satisfy the statutory test.
4. The contractual documents repeatedly contemplated Mr Smith personally providing the services. They contained no express right of substitution and were subject to an entire-agreement clause. Job-swapping between Pimlico operatives was at most tolerated work distribution, not an unfettered legal right to substitute. A right requiring prior consent would also be qualified because consent could be refused.
5. Pimlico was not Mr Smith’s client or customer. He was presented to the public as part of Pimlico’s workforce, worked within its operations and was subject to substantial control and restrictions. The Tribunal had therefore applied the correct statutory approach and was entitled to conclude that he was a limb (b) worker.
6. No remittal was necessary.

• Employment Tribunal: held that Mr Smith was not an employee, but was a worker under section 230(3)(b) of the Employment Rights Act 1996 and in employment under section 83(2) of the Equality Act 2010.
• Employment Appeal Tribunal: dismissed Pimlico’s appeal and Mr Smith’s cross-appeal. No remittal was ordered.