Brian Parker & Ors v BCA Logistics Limited — 2023

This was a reserved preliminary hearing before Employment Judge Meichen sitting alone in Birmingham. The issue was whether the claimants, who were engaged by BCA Logistics Ltd as drivers for vehicle collection, inspection, delivery and transport services, were workers for the purposes of s.230(3)(b) ERA 1996, reg. 2(1) Working Time Regulations 1998 and s.54(3)(b) National Minimum Wage Act 1998. The tribunal noted that the lead cases were those of Ian Williams and Tristram Moulton, and that the hearing concerned the status issue only, not the merits of the wages, holiday pay or minimum wage claims.

The tribunal preferred the claimants' evidence on the practical operation of the arrangements. It found that the respondent controlled recruitment, imposed the fee structure, required detailed training, issued the equipment needed to do the work, populated availability calendars, and generally allocated 1 to 3 jobs per day. It also found that the claimants were expected to commit to working either 3 or 5 days a week, to give 48 hours' notice if unavailable, and to work on days marked available unless they had a satisfactory explanation.

A central issue was substitution. Although the written Operating Agreement contained a substitution clause, the tribunal found that clause did not reflect the reality of the relationship and was not a genuine feature of the bargain. It accepted the claimants' evidence and documentary material showing that requests to use substitutes were refused or met negatively, that no claimant or other self-employed driver had ever used a substitute in practice, and that the respondent had given little or no thought to the practical issues of training, insurance, trade plates, equipment and data protection if substitutes were used. The tribunal also rejected the respondent's evidence that substitution was an unfettered right in practice.

The tribunal concluded that the claimants undertook to perform the services personally, that the respondent was not their client or customer, and that the relationship was one of subordination and dependence rather than independent business-to-business engagement. It held that the written terms describing the claimants as self-employed did not reflect what was truly agreed and that there was an overarching obligation to work on the days to which the claimants had committed. The tribunal therefore found that the claimants were workers for the statutory purposes in issue. No substantive monetary award was made at this hearing.