Description of a worker

Case 13: The facts

Two workers called Miller brought claims for outstanding holiday pay. To succeed, they had to first show that they were "workers" and not self-employed.

The Millers' work arrangements suggested that they could arrange for substitutes, although in practice they did not. However, there was no documentation to show what their contractual position really was.

The ruling

The Employment Appeal Tribunal (EAT) held that the tribunal had been entitled to consider what had happened in practice over a number of years; this showed that the Millers were expected to undertake the work personally for the company.

The tribunal had also found that they were supplied with protective clothing bearing the company logo and were told when and where to work. They were therefore workers.

The EAT held that labour-only contractors within the construction industry count as workers if they work for long periods for a single employer as an integrated part of the workforce, with limited specialist skills, supplying little or nothing by way of equipment and undertaking little or no economic risk. This is the case even if they are regarded as self-employed for tax purposes.

Plumbing Services v Miller and Miller UKEAT/0019/05