The EAT has affirmed the earlier decision of an employment tribunal that hundreds of drivers working for BCA Logistics, a vehicle remarketing company, were “workers” and so entitled to employment rights including those conferred by national minimum wage and working time legislation.
This appeal took place in the context of a large group action brought by around 1,000 current and former drivers seeking compensation for failure to pay national minimum wage and holiday pay. BCA Logistics maintained in response to the claims that the claimants were independent contractors, rather than workers, and so did not qualify for these employment rights.
In May 2023 an employment tribunal found that the claimants were indeed “workers”, concluding among other things that the driver’s written contracts did not reflect the reality of their working relationship.
BCA Logistics’ appeal to the EAT focused on the tribunal’s findings that a “substitution clause”, purportedly allowing drivers to engage someone else to do their work, was not genuine. It was argued that the tribunal had “discounted” evidence of “positive interactions about substitution” and had wrongly drawn an adverse inference from the fact that BCA Logistics failed to call a single current or recent driver to give evidence in support of the company’s account of its arrangements with workers.
Cavanagh J, sitting in the EAT, rejected BCA Logistics’ appeal. The tribunal had been entitled to find that evidence of more recent interest in substitution had been “extremely thin”. The tribunal had not drawn an adverse inference but would have been entitled to do so in any event.
Karon Monaghan KC and Darryl Hutcheon were instructed on behalf of the claimants.
Click here to access the full judgment.