Bus driver held not to be employee, but entitled to unpaid wages claim

Though holding that bus driver Konstantinos Theodoridis was not an employee of a recruitment agency, a Bristol employment tribunal concluded that he was a worker, and his claim for unpaid wages could proceed.

The recruitment agency is involved in supplying staff to the coach and bus driving sector nationwide. Mr Theodoridis was a bus driver. He applied for work with the agency via an online process. His application was accepted, and he was given a 19-page ‘employment contract’ with an ‘umbrella’ company that provided payroll services.

The contract stated that his ‘employer’ was the payroll company. The contract made no mention of the agency. The contract said that the payroll company would allocate ‘client assignments’ to him. He was given a ‘bus application pack’ with no reference to the payroll company within it.

He was required to certify that he was not currently engaged in any paid work outside of his commitments to the agency business, and that it was his responsibility to inform the company immediately if that should change at any point during his employment. The payroll company had been set up by two directors of the recruitment agency.

The tribunal concluded that the arrangements which existed fell short of Mr Theodoridis establishing that he was employed by the agency. The fact that he was mentioned in certain items of correspondence as being or having been an ‘employee’ did not determine his legal status as such.

Irrespective of the fact that he worked continuously on an operator assignment from early 2022 until late 2023, that did not of itself demonstrate that he was an employee.

The fact that when work at the operator ceased, he was offered alternative assignments by the agency, but was able to decline those, strongly indicated against there being sufficient evidence for an employment relationship to have existed.

If he was an employee of the agency, he would have been obliged to carry out work which was reasonably assigned to him by that company, and he would not have been free to decline it.

The day-to-day control of his work was exercised by the operator, not the recruitment agency. There was no sense of meaningful control by the agency over how he carried out his role for the operator on a day-to-day basis.

The payroll company arrangement by which the claimant was paid and purportedly employed was no more than a mechanism for payment. It was the agency for whom Mr Theodoridis worked in reality, albeit that he was not its ‘employee.’