Boxer v Excel Group Services Ltd ET/3200365/2016

The ET has confirmed that a cycle courier was a worker entitled to holiday pay; a decision which follows highly-publicised cases over the last six months involving Uber, Citysprint and Pimlico Plumbers.

Mr Boxer, a cycle courier, brought a claim against Excel Group Services Limited ("Excel") arguing that his role as a cycle courier was within the definition of a worker under section 230(3)(b) of the Employment Rights Act 1996, and therefore was entitled to receive holiday pay for a period of one week during which he had taken holiday but had not been paid by Excel.

Finding in favour of Mr Boxer, the ET took into account a number of factors, including the duration of Mr Boxer's work (three years); under whose direction he performed his role; and the Court of Appeal's judgment in Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51. It held that, inter alia, Mr Boxer's terms of employment as a self-employed contractor did not reflect his day-to-day role; it was clear that he was personally bound to Excel and could not realistically use a substitute courier because the clause governing that right was too restrictive; and the inequality of bargaining power when he signed his contract was notable. As such, the working relationship as a whole was only compatible with his being a worker.

Tribunals are likely to face similar issues in the future, and the spotlight on the gig economy does not appear to be fading. Recent decisions prove the ET's willingness to look beyond the mere employment terms and focus on the reality of the situation at hand; and individuals may take this recent trend of worker status as an opportunity to assert their employment rights. Employers engaging contractors should take proactive steps to ensure that contracts signed by such individuals represent an accurate depiction of the working relationship.