The Supreme Court handed down its judgment yesterday in the case of Pimlico Plumbers Ltd and another v Gary Smith [2018] UKSC 29 confirming (as the Employment Appeal Tribunal and the Court of Appeal had) that Mr Smith was a worker within the meaning of the Employment Rights Act and not, as Pimlico Plumbers contended, self-employed.

Whilst Mr Smith was entitled to appoint a substitute, he was only entitled to appoint one who was also utilised by Pimlico Plumbers (and subject to the same obligations to them as he was). The Supreme Court held the Employment Judge had been entitled to find that Mr Smith had an obligation of personal performance, which meant that he had worker status.

The Court also found that the Employment Judge had been entitled to conclude that other factors suggested that Mr Smith was a worker despite Pimlico Plumbers' contention that he was entitled to reject work and take work elsewhere (although his contract implied otherwise). For instance, Mr Smith was required to wear a branded uniform, drive a branded van, carry an identity card and closely follow instructions from the company's control room. In addition, the terms as to Mr Smith's pay and the contractual references to 'gross misconduct' and 'dismissal' as well as the suite of restrictive covenants which were expressed to apply to Mr Smith on termination of the relationship were all relevant.

The Court considered whether Mr Smith had worker status on the facts of the case and did not add anything significant to the test for establishing a worker.

Although the owner of Pimlico Plumbers, Gary Mullins, has said he is considering appealing to the European Court of Human Rights, it would appear that the employment status of Mr Smith is now settled.

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