carlston49:
Many Ltd drivers will at some point have had that dreaded phone call from the agency cancelling that day’s shift without payment. Now it appears that might be a good thing as it shows there is no MOO. Unfortunately for Eamonn, his contract made sure he was entitled to payment when his shift was cancelled resulting in him being classed as an employee.“IR35 ruling leaves broadcasters facing uncertainty: Eamonn Holmes tribunal analysis”
The tribunal heard how contracts between ITV and RWG (Eamonn’s Ltd company) would stipulate fixed dates upon which Holmes was expected to provide services to ITV, and that Holmes was contractually entitled to payment in full for dates cancelled by the broadcaster. These terms appeared at odds to the actual reality, but were relied upon in the decision.
“Unfortunately for Holmes, it didn’t matter that he hadn’t insisted on payment in these instances,” says Chaplin. “The fact that it was written into the contract was the killer blow as far as mutuality of obligation is concerned. Just because a contractual right is not exercised, does not mean the right does not exist.”
I thought “mutuality” had fallen out of favour nowadays anyway. The judges know the concept is absurd.
As for Holmes, I don’t see that a right to payment upon cancellation truly sets apart the employee from the contractor.
If you book a plumber, he’s not an employee simply because he expects to be paid his call-out fee whether you use him or not.