Above: boss Charlie Mullins in characteristic pose
The Court of Appeal yesterday ruled that a plumber who claims he was sacked following a heart attack, was a ‘worker’ and thus entitled to some work-related rights, according to the decision in Pimlico Plumbers Ltd and another v Smith.
The judgment has important implications for so-called ‘gig economy’ companies that claim their workers undertake services on a self-employed basis and so have no employment rights.
Gary Smith worked for Pimlico Plumbers from 2005 until 2011. The agreement between the company and Mr Smith described him as a “self-employed operative”.
The wording of the contract suggested that he was in business on his own account, providing a service to Pimlico Plumbers.
Smith was required to wear Pimlico’s uniform displaying their logo, use a van leased from Pimlico (with a GPS tracker and the company’s logo), and work a minimum number of weekly hours.
However, he could choose when he worked and which jobs he took, was required to provide his own tools and equipment, and handled his own tax and insurance.
There was no express term in the agreement allowing Mr Smith to send someone else to do the work.
Pimlico Plumbers did not guarantee to provide Mr Smith with a minimum number of hours. Following the termination of this arrangement, Mr Smith brought claims for unfair dismissal and disability discrimination.
The employment tribunal found that he could not claim unfair dismissal because he was not an employee.
However, the tribunal decided that he could claim disability discrimination as a ‘worker.
The Employment Appeal Tribunal (EAT) agreed with the employment tribunal, and the Court of Appeal has now dismissed Pimlico Plumbers’ appeal.
Unlike recent high-profile judgments involving Uber drivers and CitySprint couriers, this ruling is binding on other courts and tribunals.
Pimlico Plumbers boss and prominent Tory donor Charlie Mullins, decorated his fleet of vans with pictures of Margaret Thatcher on the day of her state funeral. He says there is a “good chance” he will take the case to the Supreme Court, but so far he’s lost every round of the legal fight.
The Appeal Court decision is likely to be a key authority in any forthcoming cases on employment status in the gig economy. However, it is important to note that this decision did not find that the plumber was an employee of Pimlico Plumbers.
People categorised as workers have a right to minimum wage and to paid annual leave, along with some other procedural rights, such as a right to be accompanied at any form of disciplinary meeting, but they do not enjoy the full range of protections given to employees and are not subject to the PAYE system applicable to employees.
Frances O’Grady of the TUC said: “This case has exposed once again the growing problem of sham self-employment.
“Unscrupulous bosses falsely claim their workers are self-employed to get out of paying the minimum wage and providing basics like paid holidays and rest breaks.
“But the best form of protection for working people is to join a union in your workplace.”
The GMB is currently supporting a group of Deliveroo food couriers in Brighton currently classed as ‘independent contractors’, who have given two weeks notice of industrial action for better pay and more hours.
The GMB’s Paul Maloney said: “We stand with the riders against Deliveroo, another company trying to duck its obligastions and responsibilities by making its workforce ‘independent contractors’.”
The government has only now, after more than a year’s delay, released a report warning that “unscrupulous” employers were in a position to exploit low-paid and low-skilled workers.
Other gig economy cases
Uber is appealing against the high-profile employment tribunal decision that the drivers who brought the claim are workers rather than self-employed.
A similar finding when the Uber case goes to the EAT would be bad news for the company, as it could lead to it having to radically overhaul its contractual arrangements with its drivers.
In another recent case about employment status in the gig economy, the employment tribunal found that a CitySprint courier is a worker rather than self-employed.
In both cases, the employment tribunals were highly critical of the contracts that the workers were asked to sign.
The employment tribunals saw the contracts as drafted in a deliberately complex manner to mask the true nature of the working arrangements.
There are also a number of other forthcoming legal challenges against courier companies including Hermes, Addison Lee, Excel and eCourier.
- For more details of the GMB’s Brighton Deliveroo campaign, contact Paul Maloney on 07801 343 839 or Michelle Gordon on 07866 369 259
Illustration: Steve Bell (Guardian)
By Prof Keith Ewing
(This article first appeared in – of all places – the pro-Brexit Morning Star, on January 31 2017)
It’s not possible for the Tories to both protect workers’ rights and satisfy their red line demand that the European Court of Justice should have no legal effect in Britain, writes KEITH EWING
NOW that Brexit is inching closer, a number of questions are becoming more urgent. Not least is the question of workers’ rights.
What is to happen to the great body of labour law that derives from the EU?
Social Europe may be dead but there is an inheritance to protect. The Tories have promised that workers’ rights will be guaranteed. But they also promised that Brexit would ensure extra funding for the NHS. How equally hollow is the promise on workers’ rights?
Hard Brexit will expose workers’ rights on three fronts. In the first place, it means that any new rights that are developed at EU level will obviously not apply in Britain (or to those parts that voted Remain).
There is not much in the pipeline at the moment. But there are, nevertheless, proposals in the admittedly weak European Social Pillar for the protection of workers in the new tech industries for better transparency in the employment relationship and for EU unfair dismissal laws. These will not apply here.
A second consequence is that even if Social Europe is dead, rather than dying, there is still the framework of existing rights and the opportunity to develop them through litigation and access to the European Court of Justice (ECJ).
For those on the left, there is of course the haunting impact of the Viking and Laval cases, placing the rights of business above the rights of workers; the right to freedom of establishment trumping (in every sense of the word) the right to strike.
We are also traumatised by the recent Usdaw case in which the Collective Redundancies Directive was narrowly interpreted to defeat claims by workers who had been employed by Woolies, and before that the Alemo-Herron case in which the Acquired Rights Directive was narrowly applied in the interests of business where public services are outsourced. As a result, workers lost the right to the continuing protection of collective agreements that had previously applied.
But while all that may be true, there have also been important victories. On equal pay, it was the ECJ that established in Britain the principle of equal pay for work of equal value. And on discrimination, it was the same court that swept away the arbitrary and artificial limit on damages that had been imposed in domestic law. On working time, it was the ECJ that established the right of all workers to holiday pay, removing the Blair government’s denial of holiday pay to Bectu members employed on short-term contracts.
Also on holiday pay, it was the ECJ that addressed the problem of employers basing holiday pay entitlement on part rather than all of the worker’s normal wages, and the other problem of employers preventing workers in some cases (notably illness) from carrying over holiday pay from one year to the next.
It stamped out other working time abuses, such as employers not treating as working time the periods spent on call at the workplace, and employers not paying holiday pay because it is already rolled up in (inadequate) monthly or weekly wages.
True, it will not be a disaster if we are denied access to the ECJ, but it will be a significant loss all the same. If the existing EU rights are “novated” into British law as part of the process of the “Great Repeal Bill” promised by the Tories, the substance of these rights will be determined by the British courts whose decisions led to many of these successful challenges in the ECJ. It will lead inevitably to a two-tier system of employment law in which our EU origin rights will as a result of litigation fall behind those operating in the EU 27.
Brexit thus means more power for the British courts and more opportunities for British judges to protect workers’ rights.
There may be some on the left who are content as a result. If so, they have a poor grasp of history.
But this of course is not the end of it. A third consequence of a hard Brexit is that there is nothing to stop the Tories chipping away at EU origin employment rights, while retaining the basic structure. What is to stop the Tories restoring the restrictions on holiday pay that were ruled unlawful in the Bectu case?
And what is to stop them revisiting Beecroft and reinstating the limit on compensation in discrimination cases? The answer is nothing.
After the “Great Repeal Bill” this will all be British law, albeit EU origin British law, and it can be changed with impunity.
The Tories can keep the agency workers’ regulations, but respond to business demands that they should provide even less protection. They can keep redundancy consultation but follow Vince Cable down the path of limiting the obligations on employers.
Should these or other steps be taken, there will be no right of access to the ECJ to put a brake on the government. If, as seems likely, our economy is to be tied even more closely to that of the US — as the May government begins to look across the Atlantic rather than the Channel — the prospects of continuing deregulation on a serious scale are by no means unrealistic. But about all that is left to deregulate are the rag bag of EU employment rights whose future existence now relies on the slender thread of a promise by May and David Davis.
That promise is built on a contradiction: it is not possible for the Tories simultaneously to protect workers’ rights and satisfy their red line demand that the ECJ should have no legal effect in Britain. A choice has to be made. The right choice is clearly set out in the Workers’ Rights (Maintenance of EU Standards) Bill 2016, recently presented to Parliament by Labour and SNP MPs, which in a Schedule reveals the breathtaking scale of our dependence on EU law for protection in the workplace.
Not only does that Bill seek to preserve these rights post-Brexit as a platform on which a future progressive government could build, but it does so by requiring that in “all legal proceedings [before the UK courts], any question as to the meaning or effect of any EU Worker Right shall be determined in accordance with the principles laid down by and any relevant judgment of the ECJ.”
The latter is an essential feature of any future settlement. But it is unlikely to be the choice made by May and her hapless government.
- Keith Ewing is is professor of public law at King’s College London and president of the Institute of Employment Rights
Nick Wrack has just posted this on Facebook:
“This has just been sent to members of the Momentum Steering Committee by Jon Lansman.
I am still digesting the contents of the email but I am staggered. It has to rank as one of the most undemocratic manoeuvres in the history of the British left – and that is saying something.
What was the purpose of the National Committee meeting on 3 December? Now we can understand why the Steering Committee has not met.
A constitution will “apply from now but would be reviewed in due course and be subject to amendments”.
The local groups and special interest/liberation groups are to be by-passed and the whole correct structural set-up is to be abolished by a plebiscite.
“If this constitution is agreed, the effect would be to wind up the SC, the NC and CAC, with immediate effect, though the conference would go ahead but under the new rules, no motions would be considered.”
So, it would seem, the conference, set for 19 February, will no longer decide policy, even if it still goes ahead.
“From: Jon Lansman <firstname.lastname@example.org>
Date: Tue, Jan 10, 2017 at 7:39 PM
Subject: Proposal to Steering Group: A new constitution for Momentum
To: Marsha Jane Thompson <xxx>, Christine Shawcroft <xxx>, Sam Tarry <xxx>, Jacqueline Walker <xxx>, Martyn Cook <xxx>, Michael Chessum <xxx>, Matt Wrack <xxx>, Sam Wheeler <xxx>, Professor Cecile Wright <xxx>, Jill Mountford<xxx>, Maggie Simpson <xxx>
Cc: Emma Rees <xxx>, Adam Klug <xxx>
I am writing to explain why, in consultation with a number of others in Momentum, the Leader’s office and trade unions that have supported Jeremy Corbyn, I have decided to propose today that we immediately act to put Momentum on the proper footing that those dependant on the success of Jeremy’s leadership need it to be and our members want it to be.
Most of our members joined Momentum because they support Jeremy Corbyn and want to help him achieve what he is trying to do. We must put behind us the paralysis that has for months bedevilled all our national structures, and focus on our most urgent task – winning the general election that could come within months, by turning Labour into an effective force committed to that task, and to the transformative government that would follow.
I have also taken legal advice, based on a review of a substantial body of Momentum records, which is that in order to operate effectively as an organisation with members, Momentum needs written rules or a constitution with which all its members agree, and in our current circumstances, the only way of agreeing such a constitution which is binding on the relationship between the organisation and our members is to seek the individual consent of each of our members and affiliates.
The papers which are included in this mailing set out:
The results of the survey initiated by Jeremy Corbyn’s pre-Christmas message to Momentum members, which indicate members’ overwhelming support for the type of organisation we will continue to build, action-focused, rooted in our communities, wholly committed to the Labour Party, and involving our members directly in decision-making;
A constitution which establishes a sustainable democratic framework for the sort of organisation we need – an outwards-looking, campaigning organisation to change and strengthen the Labour Party, not to mirror its structures. This constitution would apply from now but would be reviewed in due course and be subject to amendments;
A paper on interim governance.
A paper on election process for the new National Coordinating Group to replace existing regional and national structures.
The Constitution may not be perfect in everyone’s eyes, but, whatever process we follow, it is common ground that we need one, and it is surely better to have it now and amend it later by a process that is indisputable. As well as setting out the essential elements of our aims and objectives as they have always appeared on our website and in our public statements, the constitution:
Reinforces our wholehearted commitment to the Labour Party by restating our aim of working towards affiliation, and requiring all members to be party members;
Provides for elections and key decisions including changes to the constitution to be made by our members themselves;
Provides for a structure with minimum bureaucracy reflecting members desire to focus externally on organising and campaigning through our local groups, liberation networks and the Labour Party rather than internally on making policy for ourselves.
If this constitution is agreed, the effect would be to wind up the SC, the NC and CAC, with immediate effect, though the conference would go ahead but under the new rules, no motions would be considered.
If you are happy with all these proposals as they stand, please indicate by email. If there is a majority – I think we all recognise that we shall continue to disagree on this matter – I propose that we seek the approval of members immediately.
Momentum National Steering Group
Jon Lansman’s attachments:
Momentum members’ survey
See also: Tendance Coatesy
Momentum’s Facebook page carries a bizarre video which comes from the TSSA rail union.
It’s about railway privatisation, but instead of talking about private businesses exploiting passengers and workers, it focusses entirely on the French, German and Dutch public railway companies that have bought up parts of the UK system, and basically rests on an implied “foreigners stealing our railways” message. Really dodgy, and particularly unhelpful at this time of Brexit-inspired nationalism and racism.
On the TSSA website the link to the video is accompanied by the following gems from the union’s recently re-elected General Secretary Manuel Cortes:
“This film makes the case that it is high time the UK takes back public control of our rail operating companies back [sic] from Keolis, Arriva and Abeilio [sic] who are just front companies for the French, the German and the Dutch states.
“Brexit has made Taking Back Control of train operating companies a vital economic necessity. Leaving the EU but leaving our rail operating companies in the control of EU countries to continue reaping the profits, would now be preposterous.
“It’s a no-brainer case and we hope this film will be shared widely and be used to hold the Tories to account in England and Wales – and in Scotland too where under SNP nationalist rule ScotRail has been tuned [sic] into a Dutch rail colony – for their unpatriotic and misguided running down of UK rail.”
Yes, we must hold the Tories to account for being unpatriotic!
Remember Shahrokh: build a movement!
Shahrokh Zamani Action Campaign officially launches!
The Campaign to build solidarity with the workers’ movement in Iran was officially launched last week on 20 October in London. The meeting, held at the headquarters of the National Union of Teachers heard contributions from a number of speakers from the labour and trade union movement and included veteran Human Rights campaigner Peter Tatchell.
Opening the meeting, PCS activist and Iranian Workers’ Solidarity Network (IWSN) supporter, Matt Wells outlined the aims of the campaign and the reason for launching it now, at the same time bidding farewell to IWSN, whose work the new Campaign will build on. The Iran regime’s opening up to ‘Western’ Capitalism had not paid off for the workers and youth of Iran and repression of the labour and trade union movement continued. The death of Shahrokh Zamani last year underlined this. His imprisonment and then, what we believed to be murder, for forming an independent trade union and refusing to be silenced even when behind bars, was meant as a warning to workers and youth from the regime. However, we refuse to be silenced inside and outside Iran.
Daniel Randall, activist in the RMT trade union and worker on the London Underground, then spoke. Daniel outlined the importance of solidarity for the workers’ movement; that the solidarity was based on class and not national borders. Daniel recounted how the petition to free Shahrokh and Reza (Shahabi) had been important not just in the aim to secure their release but also in raising the consciousness of his workmates about the importance of working class unity.
Omar Raii, executive committee member, National Union of Students, and NCAFC activist then spoke. Campaigning around the statements issued by the Campaign so far had helped to re-politicise the students’ movement in Britain and also raise awareness of the workers’ movement in Iran.
The meeting then heard from Aram Nobakht, a Workers’ Action Committee activist in Iran, who told the meeting about his shock and disbelief when he heard about Shahrokh’s death. Initially he thought it was rumour. When they were talking to Shahrokh exactly on the night prior to his untimely death “he was, as always, full of energy” But then it became clear that it was true. Shahrokh’s body showed signs of poisoning. But the activists had no time for sorrow. Aram went on to say: “It’s no coincidence that Shahrokh was killed at exactly the moment when the labour movement and its militancy and the radicals have been on the rise again, including daily strikes, including street clashes with the cops, even factory occupations and so on.”
“Shahrokh was tirelessly organising day and night from his prison cell. What made Shahrokh different from other typical labour activists was his obsession with building a revolutionary party. In the past we repeatedly asked him to tone down the language of his articles and his statements. He said ‘I have been sentenced to 11 years in prison, I have nothing to lose, there is no way out of here. … Can you assure me that I’ll be released alive from this prison? If … [so] then I will keep silent. … I don’t want to lose the chance to fight this regime.’
“The legacy of Shahrokh is still alive. … In his last days Shahrokh was emphasising the importance and significance of publishing a bulletin as an organising tool, as an organising organ for our committee. Over the past year we’ve been systematically involved in publishing and distributing bulletins in the labour areas, in areas around factories … along with distributing and handing out leaflets … in defence of other political activists …”
“We do believe that we are [following] on the same way as Shahrokh suggested and this is the only trustful and reliable way for founding a party, a revolutionary party from below … by finding the most militant workers, educating them, recruiting them, that’s the only basis for our future party. And this is the legacy of Shahrokh Zamani.”
Kelly Rogers, BECTU activist and leader of the strike movement amongst cinema workers then outlined how her own experience in the workplace had taught her the importance of solidarity in the face of attacks from the employers on the pay and conditions of workers. This had inspired her to organise with her workmates. Kelly said that while there was no comparison in Britain with the harshness of the conditions faced by Iran’s workers struggling against their employers and the regime, she understood that the attacks on workers come from the same place – the ruling class.
Peter Tatchell then gave a powerful and inspiring speech which concluded with a promise that the Iranian regime’s tyranny would fall.
The meeting agreed to launch a statement which will be published in the next few days and publish a model motion for trade union, labour movement and student movement organisations which is published below.
NB: all spoke in a personal capacity unless otherwise stated.
Affiliate to the campaign!
A model motion for trade union branches, student and labour movement organisations:
SOLIDARITY WITH WORKERS IN IRAN
This branch notes
1. That the July 2015 nuclear deal between the Iranian, US and European governments has opened up trade and diplomatic relations. However there has been no “peace dividend” for Iranian workers, as shown by the shocking flogging of 17 gold miners for protesting against layoffs in late May.
2. The continuing plight of working people in Iran: unemployment is still 12.2%, with youth unemployment at 27.8%; high inflation and unpaid wages pushing many employed workers into poverty; around 18% of children suffering from malnutrition etc.
3. The continuing imprisonment and repression of workers, teachers and other political activists for exercising basic democratic rights such as forming independent trade unions, expressing dissent and calling for equality for women, national minorities, disabled people, LGBTQ people, etc.
4. That despite continuing repression there has been a resurgence in Iranian workers’ protests in many sectors – car workers, rail workers, miners, nurses, gas workers, steel workers, sugar cane workers, teachers …
This branch believes
1. That Western governments and organisations like the ILO agency cannot be trusted to push for genuine workers’ and human rights in Iran. Iranian workers and others fighting for their rights need international solidarity from labour movements around the world.
2. That above all, like workers everywhere, Iranian workers need the right to strike and independent trade unions freed from state control.
We resolve to
1. Publicise the struggles of workers in Iran as well as other battles for human rights against the dictatorship.
2. Invite a speaker from the newly formed Shahrokh Zamani Action Campaign, named for the Iranian trade unionist and socialist jailed for campaigning to form independent unions and found dead in prison last year (September 2016).
3. Support and publicise the SZAC’s activities and protests.
4. Affiliate to the SZAC (which is free) and make a donation of £…
(Bank account: ‘WSN’ – Sort code: 60-83-01 -Account Number: 20018467)
FBU leader Matt Wrack marching against job cuts in 2012 (Pic: Kelvin Williams)
By Matt Wrack, general secretary of the Fire Brigades Union (This article appeared in yesterday’s Morning Star, but in view of comrade Wrack’s description of Brexit as a “victory for populist demagogy, xenophobes and racists” is clearly at variance with that paper’s pro-Brexit ‘line’).
TUC Congress convenes at an absolutely pivotal time for the labour movement and for firefighters — and the motions tabled by the Fire Brigades Union are intended to reflect that.
The new political situation in Britain is defined by the decision to leave the European Union (EU). The FBU advocated a vote to Remain. Although the EU is a neoliberal bosses’ club, some forget the key role of British governments in driving the neoliberal agenda within Europe.
Austerity in Britain is driven from Westminster, not from Brussels. Europe also provides a common terrain for workers’ solidarity and workers’ rights across the continent.
The Brexit vote was a defeat for the working class in Britain as well as internationally. It was a defeat for internationalism and collectivism. Brexit was a victory for populist demagogy, xenophobes and racists. Brexit has already had detrimental economic effects and worse is likely to come.
Brexit has resulted in a more right-wing government. It means an already difficult period ahead will be even harder for the trade union movement and the working-class communities we represent.
The FBU’s motion is clear that the trade union movement should not blame working-class people for the consequences of Brexit.
We don’t blame workers who voted to leave. We don’t blame migrant workers, they deserve solidarity.
We know two-thirds of Labour voters voted to remain. We don’t blame the labour movement or the TUC — we fought a good campaign to remain and we were right to do so.
Jeremy Corbyn was not to blame for Brexit. Corbyn campaigned from day one to remain in the EU. He was right to advocate Remain while articulating criticisms of the EU. He held scores of meetings and events. He was correct to avoid collaboration with David Cameron and the Tories.
Who do we blame? We blame the Tories. They decided on the referendum. They set the question. They set the timing. It was mostly Tory politicians who fought it out in public. It was mostly Tory voters who voted to leave. They created the mess we’re in. We need to pin the blame for the consequences on them. Every job loss, every cut, every dodgy trade deal, every attack — is their fault. Every example of economic and political turmoil needs to be laid at their door.
The TUC and unions are right to say workers should not pay for Brexit (workers have paid for the economic downturn in countless ways since 2008). But that is not enough. The labour movement has to say who will pay for Brexit. The answer is that the bosses will have to pay.
The wealthy, the ruling class — they have to pay. The money is there — in the banks, in property, in the wealth of the ultra rich — the new Duke of Westminster, Mike Ashley and Philip Green. The government should tax them for what is necessary and by whatever means are necessary.
It follows on from who’s to blame and who should pay, that the labour movement cannot support a partnership approach on Brexit.
In my view, it was wrong for former TUC general secretary Brendan Barber to sign a joint letter with Cameron during the referendum campaign.
We are not all in this together. It is not the job of the trade union movement to act as the tail of British business. It is not our job to accept deals that worsen the conditions of our members so that Brexit can be managed.
The labour movement needs to make itself a factor in the Brexit process. We do that by mobilising our members as active forces capable of shaping our own destiny.
We need to strengthen our links with workers across the world, including within the EU. We will stand in solidarity with migrant workers wherever they are. We need to hit the streets and make our voices heard. We need to speak clearly and act in determined defence of working-class interests.
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