The gig economy depends on the “workers” being non-employees. We had a dreadful blow to this recently see below. Despite the partnership’s pool of drivers being one that had no evidence of mutuality (that is, one side has the duty to offer work and the other to accept it) and the freedom with which the drivers performed their duties it all died on the lack of evidence of the drivers seeing themselves as businesses. I wonder if the argument (if advanced) might not have prevailed. I see no evidence of master or servant.
“In RS Dhillon and GP Dhillon Partnership r2017l TC 05583. the First-tier Tribunal (FTT) found that drivers engaged by the appellant to make deliveries were employees and not independent contractors.
The appellant, a partnership trading as London Goods transport, provided haulage services to its customers, larger companies which produced asphalt, tarmac and other aggregates for the construction industry. The business was run by Mr Dhillon, the managing partner.
The appellant had a pool of potential drivers of its lorries. There were no written contracts between the appellant and its drivers. Typically, the appellant’s customer would tell Mr Dhillon how many lorries were needed for deliveries and where the Loads needed to be transported. Mr Dhillon would then contact drivers from the pool and offer them a particular delivery j’ob. Drivers were paid a fixed amount per day or night shift if they accepted the job otherwise they received no pay (such as for holidays) other than occasional discretionary bonuses. How much work was given to drivers by the appellant depended on how much work the appellant was asked to do by its customers which was outside the appellant’s control. The driver to whom a delivery job was offered could refuse in which case Mr Dhillon would contact another driver from the pool. Drivers could stop accepting work from the appellant (i.e. remove themselves from the pool) with no notice period. Divers could work for businesses other than the appellant if they wished. The driver who accepted the appellant’s offer of a delivery job (the ‘first driver’) could procure another driver (the ‘second driver’) when, for example, the first driver was prohibited by law from driving a shift (because of legal Limits on the amount of continuous hours drivers of heavy goods vehicles could drive) provided the second driver had been approved by the appellant’s customer to do the job. In this case, the appellant paid the first driver the usual fixed fee and it was a matter for agreement between the first driver and the second as to what the former paid the latter.
The FTT held that not unusually, the indicta of employment v self-employment when applied to the facts of this case did not point consistently in one direction. The fact that the drivers operated without supervision and had a limited right to substitute other drivers in their place, pointed to self-employment whereas the lack of evidence that the drivers were in business on their own account, combined with quite prescriptive rules for the performance of the deliveries imposed by the appellant, pointed to employment.
The FTT looked at the overall picture and found that this was a case of a business-sawy appellant which entered into detailed written agreements to provide delivery services for its customers and built up a network of men to drive its Lorries. The drivers were engaged on unwritten, shortterm contracts, on standard terms largely dictated by the appellant. Some drivers engaged with the appellant on just a few occasions whereas others did so over extended periods of time. The appellant, for its part, was clearly carrying on business on its own account. The drivers, on the other hand, were essentially ‘day labourers’ engaged on terms that were unwritten, uncomplicated and non-negotiable. Although these engagements were short-term, the FTT concluded that looking at the whole picture, ‘master and servant’ (whilst a somewhat outdated phrase) was an apt description of the relationship between the appellant and its drivers. Mr Dhillon was very much ‘the boss’ in the relationship; and this, combined with the near-total absence of evidence that the drivers were running their own businesses, lead the FTT to conclude that the drivers were employers of the appellant rather than self-employed contractors. The appeal was dismissed.
The principal reason the FTT gave for it reaching a different conclusion to the FTT in Turnbull f2011l TC 01243. which had similar, but not identical facts, was that the it had found from the evidence that: the mutuality of obligations was satisfied; the appellant exercised a considerable degree of control over their drivers; and the drivers in this case were not in business on their own account. The FTT underlined the importance of avoiding a checklist approach when considering employment v self-employment and of making an informed, considered approach of the overall picture.”