Unite wins employment rights for many 'self-employed' workers
13th October 2009
The Court of Appeal has today handed down a landmark judgment in
Autoclenz v. Belcher & others. As a result of the judgment it
will be much more difficult for employers to take away workers’
employment rights by labelling them “self employed”.
Unite joint general secretary, Tony Woodley, said: “This is a
significant day for workers’ rights. For far too long too many
employers have tried to take away our members’ employment rights by
claiming they are 'self employed' when quite clearly they are not.
We have always been able to see through these sham arrangements and
are pleased that now the Court of Appeal has too.”
The Court of Appeal upheld Unite’s argument that valeters
working for Autoclenz (which had a contract to clean cars for
British Car Auctions), were employees and not self employed
contractors. Consequently, those valeters now enjoy the whole range
of employment rights including:
- the right not to be unfairly dismissed;
- holiday pay;
- national minimum wage;
- maternity pay; and
- redundancy pay.
They would have had none of those rights had they been held to
be self-employed contractors as Autoclenz had claimed.
Autoclenz tried to take away the rights of the Unite members by
including clauses in their contracts that were designed to suggest
that the Unite members were self-employed contractors and not
employees. The clauses included a supposed right for the valeters
to send a substitute to carry out their work and a clause
suggesting that Autoclenz did not have to provide work to the
valeters and the valeters did not have to do any work that was
offered. In reality the valeters could not send a substitute and
did have to do work that was offered to them. However they had been
told that no further work would be provided if they did not sign
the contracts.
The Court of Appeal held that the offending clauses should be
disregarded as they did not represent the “true agreement” or the
“real bargain” between the valeters and Autoclenz. The clauses
were, in effect, a ‘sham’. Assessing the true agreement, the
valeters were clearly under the direction and control of Autoclenz
and were, as such, employees.
Deborah Franks of Thompsons solicitors, who acted for the Unite
members, commented: “In the past employment tribunals have paid too
much attention to the written contract in deciding whether or not
someone is an employee, although what goes in the written contract
is completely controlled by the employer and often does not reflect
the reality of the employment relationship. Following this judgment
it will be much easier for employment tribunals to look at the
reality of the employment relationship and to decide that workers
are employees, with all the protections that gives them, even if
the employer has labelled them ‘self-employed contractors’.”
ENDS
Contact: Ciaran Naidoo 07768 931 315
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