We have yet another "gig economy" case, Boxer v Excel Group Services. There is now a clear pattern developing as tribunals and courts assess whether there is "worker" status. All these cases analyse a business model where the company promotes itself as a commercial opportunity for self-employed individuals to develop their own businesses. In some cases, most famously the Uber one, the company failed at the first hurdle when its description that it operated through a "mosaic of 30,000 small businesses” was dismissed as "faintly ridiculous".
A worker is not as closely connected to the company as an employee but is typically reliant upon the one organisation for their living. The key worker tests are:
- must the person personally carry out the work? If so,
do they do so with a sufficient degree of independence to make the relationship one of business and client?
Of great importance will also be the extent to which they are integrated into the core business of the organisation.
As with the previous cases, the Excel business model was found to be one where there was personal service. The individual had to carry out the tasks himself. If he did not do so, Excel would send another courier in his place. There was a "conditional right of substitution" only; as such he was personally bound to Excel. He did not operate with sufficient independence so as to make his relationship with Excel one of business and client. He was under Excel’s control as to how he operated as a cycle courier, he was required to work five days a week and his fee rate was not negotiable.
What these gig economy cases show is that if a company wants to call the people who carry out its work independent contractors, they must be truly independent. They must be free to provide the services themselves or through another person, be able to work elsewhere and have a noticeable degree of control as to how they carry out the work.