Under the Working Time Regulations 1998 a ‘worker’ was entitled to holiday pay. Ps worked exclusively for D (a building contractor) under a contract that included a zero hour agreement. The contract said Ps were ‘subcontractors’ entitled to neither sick nor holiday pay, and could substitute other labour for themselves if unable to work, but only subject to D’s express approval. EAT held that Ps were workers for the purposes of the regulations, the definition (under reg 2(1)(b)) being an employee OR ‘the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual’. The understanding was that P would do the work himself personally, and the very limited power of delegation (when P cant work, subject to D’s approval) does not prevent their being an obligation of service.
Recorder Underhill QC: Reg 2(1)(b) was targeted towards protecting an ‘intermediate’ type of worker who isn’t carrying on his own business, but equally isn’t an employee. “[T]hough nominally free to move from contractor to contractor, in practice [they] work for long periods for a single employer as an integrated part of his workforce: their specialist skills may be limited, they may supply little or nothing by way of equipment and undertake little or no economic risk. They have long been regarded as being near the border between employment and self-employment: it is for this reason that their status has for many years been a matter of controversy”.