Car valeters succeed on important employment status appeal
The Court of Appeal has handed down judgment in Autoclenz Ltd v Belcher [2009] EWCA Civ 1046.
The individual workers, supported by their trade union Unite succeeded in resisting the employer’s appeal and were successful on their own cross-appeal.
There were 20 individuals who were engaged as car valeters. The contractual documents expressly stated that they were independent contractors, that they could engage substitutes to carry out the work, that they had to provide and pay for their own cleaning materials and even that they were not obliged to provide their services.
The Court of Appeal (Sedley, Smith, Aikens LJJ), reinstating the decision of the Employment Tribunal that the individuals were all employees, said that the appeal raised a difficult point in employment law.
The Court held that, despite the attempt on the part of Autoclenz Ltd to prevent employment status arising, the true terms of the contract were not as set out in the documents. The individuals were ‘employees’ under contracts of service and (in any event) were ‘workers’ for the purposes of important employment protection rights, in particular the Working Time Regulations 1998 and the National Minimum Wage Regulations 1999.
In doing so, the Court applied the recent decision in Protectacoat Firthglow Ltd v Szilyagi [2009] IRLR 43 and explained the decision (concerning the concept of ‘sham’) in Consistent Group Ltd v Kalwak [2008] IRLR 505.
Timothy Brennan QC and Peter Edwards (instructed by Thompsons) appeared for the employees.
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