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Was the Pimlico Plumbers tribunal entitled to conclude that Mr Smith was a ‘worker’ under s230(3)(b) of the Employment Rights Act?

Yes, held the Supreme Court this morning in Pimlico Plumbers v Gary Smith.

Mr Smith issued several claims in the tribunal in 2011. An employment tribunal found that Mr Smith was not an employee but was a 'worker' and 'in employment' within the meaning of the Equality Act. This finding was upheld by the EAT and the Court of Appeal.

For Mr Smith to qualify as a worker, the Supreme Court had to agree that he had undertaken to personally perform work for Pimlico Plumbers and that the company was neither his client nor his customer.

The dominant feature of Mr Smith's contract was that he should perform the work himself; he did not have an unfettered right to give away the work. Although Mr Smith had the ability to swap a shift with another Pimlico Plumber, this was a qualified right not set out in his written contract. Mr Smith was able to reject work and bore some financial risk, but this did not outweigh the factors pointing against Pimlico Plumbers being a client. The company controlled Mr Smith's uniform and his administrative duties, as well as when and how much payment he received. The relationship of subordination was a key indicator that Pimlico Plumbers was not a client of Mr Smith.

Accordingly, the employment tribunal was entitled to conclude that Mr Smith was a 'worker'.

The Supreme Court judgment adds very little to the existing caselaw on the meaning of 'worker'; the court focused on whether the tribunal was entitled - on the facts - to find that Mr Smith was a worker.