Augustine v Econnect Cars Ltd

Employment status requires a qualitative assessment of the whole contractual relationship. Satisfaction of the first two Ready Mixed Concrete conditions does not create a presumption of employment. A tribunal may consider, at the third stage, a worker’s autonomy over whether, when and how often to work, even where the engager controls the performance of work once undertaken.

A commission-only driver may be paid partly by reference to time where working time materially correlates with fares and commission. A worker averaging substantially fewer hours than identifiable full-time comparators is a part-time worker under regulation 2(2) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

The claimant drove a private-hire vehicle under standard terms. He chose highly flexible, part-time hours, but the respondent controlled the allocation and performance of jobs and required personal service.

The Employment Tribunal held that he was a worker but not an employee under Employment Rights Act 1996, section 230. It upheld some wage-related claims, but rejected his claims based on employee status, protected disclosures, statutory rights and the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It held that he was not a part-time worker because his commission was not paid by reference to time worked.

He appealed the employment-status, part-time-worker and causation findings. The respondent cross-appealed the finding that he was a worker. The central issues were whether the status assessment disclosed an error of law, whether commission driving fell within regulation 2(2), and whether the ending of the arrangement was caused by a prohibited reason.

1. Appeal allowed in part. The Tribunal was entitled to find that the claimant was a worker but not an employee within section 230 of the Employment Rights Act 1996. The appeal on that issue and the respondent’s cross-appeal failed.

2. The status question was not one with only a single permissible legal answer once facts had been found. The Tribunal had to assess the whole relationship. It permissibly found substantial control while the claimant was working, but also found that he decided whether, when and how frequently to enter that controlled working relationship. That autonomy could be reconsidered at the third stage of the Ready Mixed Concrete inquiry and could point away from a contract of service. The self-employed tax treatment and declaration had limited, but not determinative, weight.

3. The Tribunal erred in holding that the claimant was not a part-time worker under regulation 2(2) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Commission was sufficiently related to working time: time and distance spent on journeys affected fares and therefore the 62.5 per cent commission. The evidence showed several drivers averaging 50 hours or more weekly, while the claimant averaged about 20 hours. He was consequently not identifiable as a full-time worker. The Appeal Tribunal substituted a finding that he was a part-time worker.

4. The causation findings on automatic unfair dismissal and detriment disclosed no error. The decision to withdraw the free-car arrangement and introduce the points scheme predated the claimant’s protected disclosure and generic assertions of rights. The later suggestion that he return the car followed from his refusal to continue under the new scheme and was not materially influenced by a prohibited reason.

5. The outstanding less-favourable-treatment issues under the 2000 Regulations were remitted to the same three-person Tribunal if available and able to reconvene without undue delay; otherwise, they were to be remitted as directed by the Regional Judge.

• Employment Appeal Tribunal: Allowed the appeal only on regulation 2(2) of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It substituted a finding that the claimant was a part-time worker and remitted the remaining claim issues.
• Employment Tribunal: Employment Judge Goodrich, sitting with lay members, gave reserved reasons dated 29 December 2017 and sent to the parties on 8 January 2018. It held that the claimant was a worker but not an employee, rejected the prohibited-reason claims on causation, and held that he was not a part-time worker.