Addison Lee Ltd v Gascoigne

A tribunal may find mutual legal obligations during periods when an individual is logged into a work-allocation system, even though the individual may choose when to log on or off. Established practice and the parties’ mutual expectations may crystallise into enforceable obligations to offer and accept work.

Whether that factual substratum exists is ordinarily a question of fact. In deciding worker status, the tribunal must assess the reality of the relationship rather than contractual labels. An appellate court should read an Employment Tribunal decision as a whole and should not overturn it through over-analysis of individual findings or wording.

The claimant was a cycle courier engaged by Addison Lee Ltd. The Employment Tribunal held that he was a limb (b) worker under Regulation 2 of the Working Time Regulations and was therefore entitled to holiday pay for 1 to 16 March 2016.

The written agreement described him as an independent contractor and denied any obligation to provide or accept work. The Tribunal found that this did not reflect the parties’ true relationship. Once logged into the company system, the courier was expected to be available, to accept allocated jobs, and to perform them under the controller’s direction.

Addison Lee appealed, contending that there was no mutuality of obligation during log-on periods and that the Tribunal’s wider assessment of worker status was vitiated by factual error.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant was a limb (b) worker and entitled to holiday pay.

2. The existence of a sufficient factual basis for a legal obligation is a question of fact. The Tribunal’s findings about the established practice and mutual expectations of the parties supported its conclusion that, while logged on and in the approved area, Addison Lee was obliged to offer work and the claimant was obliged to accept it, subject to a limited entitlement to decline or withdraw from a job, for example where a parcel was too heavy.

3. The claimant’s freedom to decide when to log on and log off did not negate the obligations arising while he was logged on. Mutual expectations may crystallise over time into legal obligations. An express sanction for refusal, of the kind found in Uber, was not necessary on the Tribunal’s findings.

4. The Tribunal was entitled to treat the provision deeming a logged-on courier available and willing to provide services as consistent with the true relationship. It was also entitled, applying Autoclenz, to conclude that the agreement’s contrary terms did not reflect reality.

5. The challenge to the multi-factorial assessment failed. The alleged errors amounted to an impermissibly minute and hypercritical dissection of the evidence and reasoning. Read as a whole, the Tribunal’s findings supported its conclusion that the claimant performed personal work under Addison Lee’s direction and was not operating a business in which Addison Lee was his client or customer.

• Employment Appeal Tribunal: appeal dismissed; the decision of the Central London Employment Tribunal, sent to the parties on 2 August 2017, was upheld.
• Employment Tribunal: held that the claimant was a limb (b) worker under Regulation 2 of the Working Time Regulations and entitled to holiday pay for 1 to 16 March 2016.