Subcontractor Support Group

In Byrne Brothers (Formwork) Ltd v Baird [2002] ICR 667, construction workers operating under subcontractor arrangements were found capable of falling within the statutory worker category.

The EAT explained that worker protection is aimed at people who are not genuinely carrying on businesses dealing with the other party as a customer.

Key finding

The worker category sits between employee status and genuine independent business status.

Lesson

A construction subcontractor may be self-employed for some purposes but still qualify for rights such as holiday pay where they personally provide labour as part of another business.

In Carmichael v National Power plc [1999] ICR 1226, the issue concerned casual guides who worked when required.

The House of Lords considered not only the written documents but also the way the arrangement operated in practice.

Key finding

Where the written document does not contain the complete agreement, the Tribunal may examine spoken discussions and the parties’ conduct.

Lesson

Your legal status may be proved through:

In Uber BV v Aslam [2021] UKSC 5, the Supreme Court held that employment status is determined by the statutory protection and the reality of the relationship, not simply by contractual wording drafted by the business.

Uber drivers were found to be workers during periods when they were logged into the app, within their authorised area and ready and willing to accept trips.

Key finding

A business cannot determine statutory status merely by writing contractual terms that describe individuals as independent contractors.

Lesson

The Tribunal will examine who controls the work, sets the terms and bears the real bargaining power.

In Cotswold Developments Construction Ltd v Williams [2006] IRLR 181, the Employment Appeal Tribunal considered the distinction between:

• someone actively marketing services to customers as an independent business; and

• someone recruited to work as an integral part of another organisation.

Key finding

A person is more likely to be genuinely self-employed where they operate an identifiable business, seek customers generally and deal with the contractor at arm’s length.

A person recruited mainly to provide labour within the contractor’s operation may instead qualify as a worker.