Mr W Augustine v Econnect Cars Ltd — 2017

The tribunal found that Mr Augustine was not an employee of eConnect Cars Ltd, although he was a worker within s.230(3)(b) ERA 1996. Applying Ready Mixed Concrete, Autoclenz, Byrne Brothers and Cotswold Developments, it held that the written self-employed declaration and the HMRC position were relevant but not determinative. The detailed controls in the driver terms, the absence of substitution, the respondent's control of jobs and customer allocations, and the supply of the electric vehicle all pointed towards worker status, but the tribunal concluded that the claimant's hours and days were largely determined by him, so the third Ready Mixed Concrete limb was not satisfied for employee status.

Because he was not an employee, the unfair dismissal, wrongful dismissal / notice pay and written particulars of employment complaints failed. The tribunal also said that, if it had needed to decide dismissal expressly, Mr Naylor's suggestion that the claimant return the car was not an instruction. It further found that the rent-free temporary-vehicle option discussed before the engagement was an oral term and important to the arrangement, but the dismissal claims still failed because the claimant had not shown the necessary employee status.

On whistleblowing, the tribunal held that the first four alleged disclosures were private contractual complaints and were not in the public interest. The fifth disclosure, referring to the Uber case and the status of drivers, was held to be just capable of being a protected disclosure under s.43B ERA 1996. The detriment and any automatic unfair dismissal complaints nevertheless failed on causation because the decision to withdraw the rent-free scheme had been made before that disclosure and the claimant's departure followed that earlier decision.

The Part-time Workers Regulations complaint for less favourable treatment failed because the claimant was paid by commission, not by reference to time worked. The tribunal also rejected the part-time worker dismissal/detriment complaint. By contrast, it upheld the holiday pay claim, the unlawful deduction / national minimum wage claim, and the section 10 National Minimum Wage Act 1998 records-access claim. It found that the claimant's logged-on time counted as working time for NMW purposes, noted that the NMW rate in force was £7.20 per hour, and left remedy to be agreed or determined at a later hearing rather than fixing any award in this judgment.