11KBW silks Peter Oldham QC and Richard Leiper QC in latest appellate gig economy case

Cases

On 11th May 2018 the EAT handed down judgment in Addison Lee Ltd v Gascoigne 0289/17, the latest in a growing line of decisions dealing with the status of workers in the gig economy.

Mr Gascoigne, a cycle courier, represented in the EAT by Peter Oldham QC and Tamar Burton, claimed in the Employment Tribunal that he was Addison Lee’s worker for the purposes of the Working Time Regulations 1998 (and Part 2 of the Employment Rights Act 1996) and was therefore entitled to holiday pay.  Addison Lee was represented by Richard Leiper QC.

The ET found for Mr Gascoigne, holding that he was Addison Lee’s “limb (b) worker” under reg 2(b) of the WTR.

Addison Lee appealed to the EAT.  The main ground of appeal was that the ET had found insufficient facts on which to base the conclusion that there was mutual obligation necessary to found a limb (b) worker relationship.

The EAT dismissed the appeal.  It held that the appeal could only succeed if the ET’s conclusion was perverse, and there was ample basis for its view that mutuality was present.  The EAT agreed with the ET that the fact that the work pattern was irregular, and at the choice of Mr. Gascoigne, was not determinative: the issue was the nature of the relationship while Mr Gascoigne was working. Following the Court of Appeal’s decision Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612, the EAT held a course of dealing where the casual worker may refuse any shift can give rise to mutual legal obligations during the periods of work, and the ET had been entitled to take that view in the current case.