Pimlico Plumbers Ltd & Anor v Smith

Trinity Term

[2018] UKSC 29

On appeal from: [2017] EWCA Civ 51

JUDGMENT

LORD WILSON: (with whom Lady Hale, Lord Hughes, Lady Black and Lord Lloyd-Jones agree)

INTRODUCTION

1.                  Between August 2005 and April 2011 Mr Smith, the respondent, who is by trade a plumbing and heating engineer, did work for Pimlico Plumbers Ltd (“Pimlico”), the first appellant, which conducts a substantial plumbing business in London. Mr Mullins, the second appellant, owns Pimlico.

2.                  In August 2011 Mr Smith issued proceedings against Pimlico and Mr Mullins in an employment tribunal (“the tribunal”). He alleged

(a)              that he had been an “employee” of Pimlico under a contract of service within the meaning of section 230(1) of the Employment Rights Act 1996 (“the Act”) and as such he complained, among other things, that Pimlico had dismissed him unfairly contrary to section 94(1) of it; and/or

(b)              that he had been a “worker” for Pimlico within the meaning of section 230(3) of the Act and as such he complained that Pimlico had made an unlawful deduction from his wages contrary to section 13(1) of it; and

(c)              that he had been a “worker” for Pimlico within the meaning of regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833) (“the Regulations”) and as such he complained that Pimlico had failed to pay him for the period of his statutory annual leave contrary to regulation 16 of them; and

(d)              that he had been in Pimlico’s “employment” within the meaning of section 83(2)(a) of the Equality Act 2010 (“the Equality Act”) and as such he complained that both Pimlico and Mr Mullins had discriminated against him by reference to disability contrary to section 39(2) of it and had failed to make reasonable adjustments in that regard contrary to section 39(5) of it.

3.                  By a judgment dated 16 April 2012 delivered by Employment Judge Corrigan (“the judge”), the tribunal decided that Mr Smith had not been an “employee” of Pimlico under a contract of service; and, by a judgment dated 21 November 2014 delivered by Judge Serota QC, the Employment Appeal Tribunal (“the appeal tribunal”) dismissed Mr Smith’s cross-appeal against that decision. He has not sought further to challenge it. The result is that he cannot proceed with the complaints referred to in para 2(a) above.

4.                  Nevertheless, by that same judgment dated 16 April 2012, the tribunal made three further decisions: (a) that Mr Smith had been a “worker” for Pimlico within the meaning of section 230(3) of the Act; (b) that he had been a “worker” for Pimlico within the meaning of regulation 2(1) of the Regulations; and (c) that he had been…