The widely reported decision in Pimlico Plumbers emphasises the risks of retaining control over staff. However, such control can be key to protecting an organisations' brand and reputation in the market place. Where does this leave us?
What does control mean?
The level of control exercised over an individual has always been one of the key indicators in deciding if an individual is self-employed or actually a worker (or even an employee). One element of the level of control is the right of substitution - that is the ability of the individual to provide someone else to carry out the agreed duties on their behalf.
Impact of control on brand
Understandably, organisations want to provide a recognisable, safe and consistent service. This requires all of their staff to conform to certain standards, from appearance to service levels and customer experience.
What is clear from the recent so-called 'gig-economy' cases is that such control is causing issues with maintaining the self-employed status of individuals working within the gig-economy.
In the Pimlico Plumbers case, as well as the other recent decisions such as the Uber drivers' case, wanting to maintain service standards and a recognisable brand contributed to the finding that the individuals carrying out the work were in fact workers with all the contingent rights which attach to that status. Whether it was ensuring that a particular uniform was worn or a certain car colour required, these factors were held to indicate a lack of self-determination and to be indicative of a level of control which undermined the suggestion that the individuals were genuinely self-employed.
Another element of control which caused an issue in these cases was the right of substitution. Understandably, most businesses want to ensure that any substitution is adequate and will not provide services in a way which upsets clients or customers or devalues their business brand - and at its most basic is safe and competent. As such, any right of substitution is often fettered, requiring the business to agree to the appropriateness of the substitute in advance or limiting a substitute to certain defined individuals only.
However, limiting the right of substitution in this way is casting doubt on whether there is a genuine right to substitute. As a consequence, the failure to have the genuine right of substitution is being regarded as indicative of a worker status rather than a genuine self-employed status.
So where does this leave organisations?
While many businesses now view the protection of their brand as essential to securing market share of customers and winning business, it appears that this is one of the key areas of risk when looking at worker status.
While there are a number of different factors considered in the assessment of worker status, it seems that if an organisation wants to maintain brand values it will need to make sure that the level of control required does not outweigh other factors, such as the ability to refuse work when offered.
If you do engage workers under self-employed contracts, then you will need to consider if you are comfortable with them having a high level of self-control and limit your attempts to standardise their appearance and behaviour. A question to ask is, if your brand is key to you, then are you prepared to risk that brand in order to avoid giving individuals worker rights?