Mr Bela Virag v Smart Services Logistics UK Ltd — 2024

This was a one-day preliminary hearing on 8 November 2023 before Employment Judge Jones KC. Mr Virag attended in person with the help of an interpreter, and the respondent was represented by a consultant. The tribunal was asked to decide whether he was a worker for the purposes of the Employment Rights Act 1996 and, because holiday pay was also in issue, the Working Time Regulations 1998.

The tribunal held that he was a worker under both ERA 1996 s.230(3)(b) and WTR 1998 Reg 2. It accepted that the written contract described the arrangement as a subcontracting relationship and contained clauses saying there was no contract of employment and that a substitute could be sent, but found that those terms did not reflect how the relationship worked in practice.

On the facts found, the claimant was required to work unless he gave notice of absence, he was not free to send a substitute or pay someone to help him, and if he could not work the respondent would identify someone else and pay that person instead. The tribunal also found that invoices were prepared by the respondent, public liability insurance and a vehicle were obtained through the respondent, and the claimant was not carrying on a business of his own as the respondent's client or customer.

The tribunal referred to Uber BV v Aslam, Sejpal v Rodericks Dental Ltd, Bates van Winkelhof v Clyde and Co LLP, Pimlico Plumbers Ltd v Smith, and Manning v Walker Crips Investment Management Ltd. No merits decision was made on the underlying holiday pay, unlawful deduction from wages, or written terms complaints in this judgment, and no monetary award was made.