Pimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29

Appeal against a decision that the Claimant was a limb (b) worker within the meaning of s230(3) of the ERA 1996 and therefore could pursue his claims of unlawful deductions, holiday pay and disability discrimination. Appeal dismissed.

In August 2011 the Claimant issued proceedings against the Appellants before the ET alleging that he had been unfairly dismissed, that an unlawful deduction had been made from his wages, that he had not been paid for a period of statutory annual leave and that he had been discriminated against by virtue of his disability. The ET decided that the Claimant had not been an employee under a contract of employment, and therefore that he was not entitled to complain of unfair dismissal (a finding that the Claimant does not now challenge), but that he (i) was a 'worker' within the meaning of s230(3) of the Employment Rights Act 1996 (i.e. a "limb (b)" worker), (ii) was a 'worker' within the meaning of regulation 2(1) of the Working Time Regulations 1998, and (iii) had been in 'employment' for the purposes of s83(2) of the Equality Act 2010. These findings meant that the Claimant could legitimately proceed with his latter three complaints and directions were made for their substantive consideration at a later date. The Appellants appealed this decision to the EAT and then to the Court of Appeal, but were unsuccessful. They consequently appealed to the Supreme Court.

The Supreme Court dismissed the appeal. The court said that if the Claimant was to qualify as a "limb (b)" worker under s230(3)(b) it was necessary for him to have undertaken to personally perform his work or services for Pimlico Plumbers, and that the company be neither his client nor his customer. The court held that the ET was entitled to hold that the dominant feature of the Claimant's contract with the company was an obligation of personal performance. On the second point, even though the Claimant was allowed to reject work and accept work outside Pimlico, there were also features of the contract which strongly militated against recognition of Pimlico as a client or customer of the Claimant. These included Pimlico's tight control over his attire and the administrative aspects of any job, the severe terms as to when and how much it was obliged to pay him, and the suite of covenants restricting his working activities following termination.

Read the full text of the judgment and the press release on the Supreme Court website here

Published: 13/06/2018 11:00

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