Addison Lee Ltd v Gascoigne

It is not decisive that an individual may log on and off at will; rather, mutual legal obligations can arise during periods when an individual is "logged on" if established practice and expectations constrain real freedom. The reality of the working relationship governs status, not contractual labels. Commercial consequences and repeated course of dealing can crystallise into enforceable obligations for the log-on period thereby satisfying limb (b) of the Working Time Regulations definition of "worker".

The Employment Tribunal found that a cycle courier was a "limb (b) worker" under Regulation 2 of the Working Time Regulations and entitled to holiday pay. The employer appealed, arguing (1) there was no legal obligation to accept work when logged on and so no mutuality of obligation, and (2) the Tribunal's multi-factorial assessment was perverse. The Employment Appeal Tribunal reviewed the factual findings and legal tests addressing mutuality during the log-on period and the application of the reality-over-written-terms principle. The central question was whether mutual legal obligations arose while the courier was logged on.

(1) Appeal dismissed. The Employment Tribunal's factual findings were not perverse and supported the conclusion that, during the log-on period, a contract existed which imposed reciprocal obligations to offer and to accept work subject to limited exceptions. (2) The Tribunal correctly applied established principles that the reality of the relationship governs status and that written contractual labels may be displaced by factual substratum; [Autoclenz Ltd v Belcher] was applied for that purpose. (3) Mutuality of obligation may arise from an established course of dealing and commercial practice. The absence of an express sanction did not preclude legal obligations crystallising from expectations and practice; the EAT relied on the approach in [St Ives Plymouth Ltd v Haggerty] and [Nethermere (St Neots) Ltd v Gardiner] to support that proposition. (4) Distinctions from [Uber B.V. v Aslam] were factual: here there was sufficient evidence of expectation, control and enforced practice to sustain mutuality during logged-on periods even without a formal acceptance-rate sanction. (5) The Tribunal’s multi-factorial assessment was within permissible evaluative judgment; none of the identified factual complaints required remittal. (6) Result: the Employment Tribunal’s decision that the claimant was a limb (b) worker entitled to holiday pay stands. Appeal dismissed.

• Employment Appeal Tribunal: Appeal dismissed; upheld ET findings that claimant was a limb (b) worker and entitled to holiday pay (this judgment) (see paras [53]; [57]).
• Employment Tribunal (Central London): Found claimant to be a limb (b) worker under Regulation 2 of the Working Time Regulations and awarded holiday pay (decision sent 2 August 2017).