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Employment Status- April 2017

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An employment tribunal has held that an Excel cycle courier was a worker rather than being in business on his own account, therefore succeeding in his claim for a week’s holiday pay.

This case is the second of four employment status cases in the London Central Employment Tribunal against courier companies. This case is likely to be of limited significance because Excel did not produce any evidence or attend the hearing. This was because the respondent Excel company had gone into liquidation, although the business has been purchased by Citysprint.

Based on Mr Boxer’s uncontested evidence, the tribunal found that he had to work five days a week, worked nine hours a day, had to be available at all times during the working day and could only take time off, or change hours, on notice and with agreement. In addition, Mr Boxer had no part in agreeing terms with clients, worked for fixed rates set by Excel and did not bear the risk of cost of damage in transit. The tribunal also found that, in practice, it would be very difficult for Mr Boxer to provide a substitute courier.

Mr Boxer’s written contract with Excel purported to hold him out as a self-employed contractor. The employment tribunal decided that this did not reflect the reality of the situation. The reality, the tribunal concluded, was that Mr Boxer was working under Excel’s direction and was not running his own business. Furthermore, Mr Boxer was required to provide personal service; what limited right of substitution he had was not inconsistent with this. Mr Boxer was, accordingly, a worker, being so for the entire time that he was on shift.

This is of significance for dental practice owners as it stresses again how the contract must match in the reality otherwise the employment tribunal will find that the contract is a sham, and if a self employed member of staff is found to be an employee they will be rewarded employment law rights such as the right to holiday pay.

The team at FTA Law provides advice to clients across the commercial and healthcare sectors with many of our instructions coming from referrals from long standing clients and industry contacts.

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