Was the plumber an employee?

05 December 2014

The Employment Appeals Tribunal (EAT) has ruled on the question of whether a plumber was employed or self-employed.

Many thanks to Daniel Barnett for this report of the EAT decision in the case of Pimlico Plumbers v Smith.

Although the Claimant wore Pimlico Plumber's uniform and drove a van with Pimlico's logo, the written agreements gave the impression he was in business on his own account.

The Claimant was paid against receipt of invoices, personally accounted for tax and was VAT registered. He was required to provide his own tools, equipment and materials and maintained his own insurance. Although required to work a minimum number of weekly hours, he could choose particular working hours and could reject particular jobs. Pimlico was under no obligation to provide work if none was available.

In upholding the decision that he was not an employee, the EAT held the employment tribunal had been entitled to have regard to the Claimant's financial risk, the degree of autonomy as to quotations and how work was carried out. It was also of significance that both parties acted as though the Claimant was self-employed.

The EAT also upheld the decision that the Claimant was a 'worker', largely because it was envisaged that he would provide personal service. It was reaffirmed that an unqualified right to provide a substitute negates personal service but that where prior consent to a substitute is required the right is not unfettered.

There was no express provision which permitted substitution and, it was held, the most Pimlico Plumbers was willing to tolerate was a form of job-sharing or shift swapping without any legal obligation, which was insufficient to amount to an unfettered right of substitution.