A growing gig economy

In Boxer v. Excel Group Services Ltd ET/3200365/2016, Mr Boxer brought a successful claim against Excel Group Services Ltd (Excel) for one week’s holiday pay. Mr Boxer had been a cycle courier for Excel since September 2013. His contract described him as a “subcontractor” and he was registered as self-employed with HMRC. Excel did not pay Mr Boxer when he took a week’s holiday and so he decided to claim for his holiday pay.
The Employment Tribunal had to decide whether Mr Boxer was a “worker” under section 230(3)(b) of the Employment Rights Act 1996 and regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833) in order to determine whether his claim could proceed. The Employment Tribunal concluded that Mr Boxer was a worker. The key considerations for the Employment Tribunal in determining this were:

  • he signed a contract because he had no choice: there was no negotiation or tendering process;
  • he worked five days a week, nine hours a day, and had to be available during the working day;
  • while he enjoyed some flexibility in respect of time off or changing hours, this had to be by arrangement and with notice;
  • he was paid a fixed rate for his work, which was non-negotiable;
  • he did not have to bear the cost of any damage in transit or pay insurance; and
  • not only was he expected to work and in turn was entitled to expect a steady stream of jobs, he was also expected to stand by between jobs and wait for the next one.

Mr Boxer’s evidence in this case was uncontested as Excel had gone into liquidation. Nonetheless, the case is a further example of a (first instance) claim against a courier company and application of the Court of Appeal decision in Pimlico Plumbers Ltd v. Smith [2017] EWCA Civ 51. To see our previous blog post on Pimlico Plumbers Ltd v. Smith [2017] EWCA Civ 51, please click here.

Michelle Lamb

About Michelle Lamb

Michelle is a senior associate in the Employment team. She advises public and private employers on all aspects of contentious and non-contentious employment law, but specializes in TUPE, change programs, employment aspects of corporate transactions and discrimination complaints. Michelle regularly procures advice from other jurisdictions to support Dentons' multinational client base.

Full bio