'Bogus' self-employment in the road haulage industry to come under spotlight at employment tribunal

The use of ‘sham and bogus’ employment practices and agency worker abuses in the road transport industry is going to be tested at an employment tribunal (ET) in Manchester. 

Unite, the country’s largest union, today (Thursday 2 November) served a claim on behalf of Gary Sharrock, a driver from St Helens, against ADR Network Limited, the Co-op’s preferred agency, and PPF Limited. 

The crux of the case is that Gary Sharrock had to set up his own company, while the work he did driving across the north of England was the same as those employed on a Pay As You Earn (PAYE) basis. 

Unite Legal Services said that Mr Sharrock did not want to work on these terms, ‘but was not offered, or advised he could undertake, work on any other basis’. The union claims that ADR and PPF do ‘engage employers on a PAYE basis’, but that he ‘was not afforded that option’. 

Gary Sharrock drives exclusively for ADR and PPF on a contract run by Wincanton PLC on behalf of the Co-operative Services Ltd from the Lea Green depot on Merseyside. He transports goods to Co-op stores across the region. 

Mr Sharrock set up Sharrock Transport Ltd. However, he does not own his own truck or have any form of public liability insurance. The responsibility for the maintenance, insurance and fuel of the truck ‘lies elsewhere’. He is required to wear the same uniform as those employed by ADR and PPF on a PAYE basis. 

He requested holiday to be taken in July this year and this was refused. He argues that he is entitled to be paid for statutory annual leave since he started work in September 2016. 

Unite assistant general secretary for legal services Howard Beckett, said: “The significance of this case cannot be underestimated. Not only are we challenging the agency’s use of bogus self-employment to avoid the basic right to holiday pay, this also has implications for our member’s right to sick pay and a pension and it is a brazen attempt to circumvent the Agency Worker Regulations 2010. 

“The Agency Worker Regulations require agencies to pay workers the same rates as the client’s employed workforce, in this case Wincanton but, at other Co-op depots, directly employed Co-op drivers. 

“Failing to do so not only fleeces workers who are forced to undertake precarious agency work, but it undermines and undercuts the employed workforce. 

“This is unacceptable for any employer, but for one that claims to be an ‘ethical’ employer is even more troubling.  

“This case is being pursued by Unite’s strategic case unit, which was set up earlier this year to tackle precisely this type of case. Unite will not stand by while our members’ rights are abused. Bogus self-employment and agency worker abuses are both key focuses for Unite and the work our strategic case unit is doing will help us stamp this out. 

“While we continue to wait with baited breath for the government to do something to address the ever increasing precarious employment abuses via zero hours contracts, agency workers, the ‘gig-economy’ and harassment of many of those forced to take on insecure work, Unite will continue to fight this every way we can; industrially, legally and politically.” 

Unite national officer for road transport Adrian Jones said: “This case highlights what Unite contends is the tip of the iceberg in terms of sham and bogus employment across the road transport sector. 

“What this leads to is a serious erosion of terms and conditions for drivers who might have to accept conditions similar to Gary Sharrock. Unite won’t accept this helter-skelter race-to-the bottom for its members. 

“It is clear that Gary is doing the same job as those working for ADR and PPF on more secure conditions. We strongly believe that Gary is a victim of sham employment – and this is not acceptable, hence the submission to the ET.” 

Gary Sharrock is claiming holiday pay under the 1998 Working Time Regulations; a claim for the unlawful deduction from wages under the 1996 Employment Rights Act; and a claim for pay parity under the Agency Workers Regulations 2010. 

It is expected the case will be heard early in 2018.