The Enigmatic Message of Hermes

I suppose that enigmatic pronouncements by mythical messengers are only to be expected but the recent announcement of an agreement between Hermes (the couriers) and trade unions about working conditions is very enigmatic indeed.

For many years, our legal system has grappled with the differences between employment and self employment. A variety of tests have been tried out some of which (forgive another classical allusion) have been somewhat Delphic. The concept of “control” of the nature and method of work has given way to the mysterious “multiplicity of factors” test and then  “mutuality of obligation”. Like all of the best dramatic plots, it looks as if we will soon come full circle and return to “control”. The more recent invention of the concept of a “worker” has complicated things further. A worker is essentially a hybrid or intermediate category of people who have a direct, labour based contractual arrangement with a business and who enjoy some, not all, employment protection rights.

Recent case law involving those icons of the “Gig Economy”, Uber and Pimlico Plumbers suggests that the courts find it quite easy to penetrate the membrane between self employment and “worker” status in order to give relatively casual workers some important rights such as holiday pay. The Hermes agreement seems to accept that worker status is a virtual certainty in the context of its particular business model and therefore grants some of those rights voluntarily in return for having more ability to direct how work is done. Socially that is probably a step forward. It also enables Hermes to be seen to grant willingly that which other businesses have been compelled to accept by the courts.

However, the granting of worker rights (based on employment rights) in return for more management control brings matters right up against the boundary between “worker” and “employment” status. So we expect HMRC to take a lively interest in such arrangements and that Employment Tribunals will soon be considering whether such enhanced “worker” arrangements in fact amount to employment with all that entails in terms of, for example, unfair dismissal rights.

Things could get more enigmatic yet.