Addison Lee Ltd v Lange

A written contract does not conclusively determine worker status where, assessed realistically and with regard to the parties’ relative bargaining power, it does not reflect their true agreement. A tribunal may find both an overarching contract and separate worker contracts during periods of work, despite flexibility over when work is undertaken.

Drivers who log on to a booking system and are obliged, subject to sanction, to accept allocated jobs undertake personally to perform services for the operator. They are limb (b) workers. Logged-on time, other than genuine breaks, is working time where availability is an essential part of the service and the driver is at the employer’s disposal.

The claimants drove private-hire vehicles under arrangements involving a Driver Contract with Addison Lee and, usually, a vehicle-hire agreement with an associated company. They claimed holiday pay and the national minimum wage.

The London Central Employment Tribunal held that they were limb (b) workers. It found an overarching contract and, alternatively, that drivers who logged on were obliged to accept allocated jobs. It also held that logged-on time, apart from breaks, was working time under the Working Time Regulations 1998.

Addison Lee appealed. The central issues were whether the written terms prevented those findings and whether logged-on waiting time was working time.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the drivers were limb (b) workers and that logged-on time, excluding breaks, was working time.
2. The Tribunal was entitled to apply the realistic and worldly-wise approach confirmed in Autoclenz Ltd v Belcher [2011] ICR 1157. In employment arrangements, the written agreement may not represent the parties’ true bargain. The Tribunal permissibly concluded that clause 5.2 of the Driver Contract did not accurately reflect the arrangement.
3. When logged on, drivers had to accept allocated jobs unless they gave an acceptable reason. Refusal could result in referral to a supervisor and sanction. That finding was supported by the evidence and was inconsistent with an unfettered right to reject work. The drivers therefore undertook personally to perform services while logged on, regardless of whether an overarching agreement existed.
4. The Tribunal was also entitled to find an overarching contract. Although drivers retained substantial freedom over the time and place of working, the parties’ arrangements supported obligations on each side. The drivers undertook to do some driving work, and Addison Lee undertook to place them on its system and afford a fair opportunity to obtain bookings. The ability to choose particular occasions for work did not prevent an irreducible minimum of mutual obligation.
5. Under regulation 2(1)(a) of the Working Time Regulations 1998, logged-on drivers were working, at Addison Lee’s disposal, and carrying out their activities or duties. Their availability was an essential part of the service required to meet customer demand. Genuine break periods were different and did not satisfy the definition. The Tribunal’s conclusion was consistent with Federacion de Servicios v Tyco [2015] ICR 1159.

• Employment Appeal Tribunal: Addison Lee’s appeal was dismissed. The Tribunal upheld the Employment Tribunal’s findings on limb (b) worker status and working time.
• Employment Tribunal, London Central: By judgment dated 25 September 2017, it held that the claimants were limb (b) workers and that logged-on time other than breaks was working time.