Was a plumber engaged by a plumbing and maintenance company an employee?
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Employment Status

Thanks to David Campion of Garden Court North Chambers, for preparing this case summary
Was a plumber engaged by a plumbing and maintenance company an 'employee'?

No, although he was a worker, held the EAT in Pimlico Plumbers v Smith.

Although the Claimant wore Pimlico Plumber's uniform and drove a van with Pimlico's logo, the written agreements gave the impression he was in business on his own account.

The Claimant was paid against receipt of invoices, personally accounted for tax and was VAT registered. He was required to provide his own tools, equipment and materials and maintained his own insurance. Although required to work a minimum number of weekly hours, he could choose particular working hours and could reject particular jobs. Pimlico was under no obligation to provide work if none was available.

In upholding the decision that he was not an employee, the EAT held the employment tribunal had been entitled to have regard to the Claimant's financial risk, the degree of autonomy as to quotations and how work was carried out. It was also of significance that both parties acted as though the Claimant was self-employed.

The EAT also upheld the decision that the Claimant was a 'worker', largely because it was envisaged that he would provide personal service. It was reaffirmed that an unqualified right to provide a substitute negates personal service but that where prior consent to a substitute is required the right is not unfettered.

There was no express provision which permitted substitution and, it was held, the most Pimlico Plumbers was willing to tolerate was a form of job-sharing or shift swapping without any legal obligation, which was insufficient to amount to an unfettered right of substitution.

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Daniel Barnett is a barrister with 20 years’ experience litigating and advising in employment, HR and associated litigation. He is primarily a litigator, described in legal directories as “tenacious”, “inexhaustible” and “an excellent advocate” (see testimonials). He has been instructed by a Royal Family, international airlines, various FTSE-250 companies, local authorities, NHS Trusts, as well as a myriad of SMEs. Employee clients range from senior executives of quoted companies through to David & Victoria Beckham’s nanny. His specific areas of interest are post-termination restrictive covenants, age discrimination and retirement issues, industrial law (strikes), employment agencies and permanent health insurance disputes. He practises from Outer Temple Chambers, a highly regarded set of Chambers in London.
Outer Temple Chambers’ employment and discrimination team is an important player in the field. We have acknowledged expertise representing both employer and employee, covering all aspects of collective and individual employment law, including High Court breach of contract and injunction proceedings, and all aspects of individual and collective employment rights.

We appear regularly in the civil courts and tribunals, before the Central Arbitration Committee, all appellate courts, and in mediations. Members of our team also accept instructions to act as external decision-makers, and to advise public and private sector employers and service-providers.

Major test-cases in which members of the team appeared in 2010 include British Airways v Williams [2010] UKSC 16, which will determine the holiday pay of thousands of individuals across the aviation industry; Sagoo & ors v Birmingham City Council, believed to be the largest of the vast multi-claimant local authority equal pay cases; and USA v Nolan [2010] EWCA Civ 1223, which will affect the consultation rights of workers across Europe in relation to redundancy.

Members of Chambers who advise and represent in employment law disputes, listed in order of call (experience), are:-
 
  • Richard Lissack QC
  • Gerard McDermott QC
  • Andrew Short QC
  • Keith Bryant QC
  • Mark Mullins
  • Natasha Joffe
  • Daniel Barnett
  • Naomi Cunningham
  • Andrew Allen
  • Benjimin Burgher
  • Lydia Seymour
  • David Grant
  • James Arnold
  • Naomi Ling
  • Oliver Assersohn
  • Eleanor Davison
  • Michael Uberoi
  • Farhaz Khan
  • Saul Margo
  • Ben Bradley
  • Clare Baker
  • Samantha Cooper
  • Robert Dickason
  • Keira Gore
  • Nicholas Hill
  • Will Young
  • Katarina Sydow
  • Saaman Pourghadiri

Please see
www.outertemple.com for further details.
For further information, or to enquire about his
availability, please contact Daniel Barnett's clerks on 020 7353 6381 or visit www.danielbarnett.co.uk
Daniel Barnett
Outer Temple Chambers
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daniel.barnett@outertemple.com
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