BCA ‘confident’ of legality of commercial relationship with drivers

BCA has said that it is “confident” of the legality of its operating model and commercial relationship with its self-employed contractors – suggesting it delivers mutually beneficial flexibility.

A spokesperson for the remarketing and logistics giant was responding to reports that BCA could be set to face a legal case over hourly pay rates equating to as little as £2.30-per-hour for its self-employed delivery drivers.

Law firm Leigh Day plans to launch a legal claim against BCA in what would be the latest in a string of claims against so-called gig economy companies in the wake of a landmark Supreme Court ruling against Uber.

But BCA has told AM that it is confident of its terms of employment and insisted that many drivers reject the offer of joining its employed workforce as they “prefer the flexibility and commerciality of the self-employed model”.

A spokesperson said: “The nature of the work we undertake for our customers dictates the need for flexibility in order to deliver the level of service our customers need. 

“The seasonal nature of the motor industry means that there are very different needs and requirements at the peak periods – broadly speaking the spring and autumn – to the rest of the year.

“We, in common with other suppliers across the sector, manage this through a reasonable mixture of an employed workforce and the engagement of a number of self-employed contractors who choose to contract for us if, when and how it suits them.”

An article published by the Independent newspaper this week said that, while BCA chief executive Avril Palmer-Baunack collected £29m in salary and bonuses in 2018, drivers are classed as outside contractors and are often paid just £60 for shifts which they say can stretch to 13 hours – equating to an hourly rate of just £4.61.

It is also accused of depriving drivers of their holiday rights under their contractor status.

One driver described the pay as “very exploitative” and “completely unacceptable”.

But BCA told AM: “We take our responsibilities to our employees and to the self-employed contractors we work with very seriously.

“To this end, we regularly review our operating model to ensure both our business and the self-employed contractors are operating in accordance with the relevant law and - as that law changes – we apply those changes to our business and our relationships.”

“We are confident that our operating model and the commercial relationship we have with the self-employed contractors is lawful.”

In spelling out the factors which it said ensured its self-employed contractors were lawfully employed, BCA said that there was no mutuality of obligation between BCA Logistics and its self-employed contractors, “unlike with our employed driver population”.

BCA pointed out that it provided them with “limited equipment in order that they can provide the services us”, none of which, it said, “show any BCA Logistics branding” and said that its self-employed contractors have an absolute discretion to decide the days they wish to work.

It said: “On the days and dates a self-employed contractor make themselves available, we offer them the opportunity to accept contracts via an electronic system.

"The particular contracts, together with the fees offered for them, are then reviewed by the self-employed contractor, who has absolute discretion to accept or reject any or all of those contracts or fees offered and/or negotiate alternative contracts or different fees. 

“Self-employed contractors can refuse any or all contracts offered without any penalty and choose not to work if the contracts don’t suit them personally or commercially.”

BCA said its self-employed contractors are not obliged to offer their services exclusively to it and exercise control over the manner in which each contract is fulfilled, choosing the routes they take, any forms of transport they might use between contracts and when they take rest breaks.

They are also not subject to disciplinary, grievance or appraisal procedures which do apply to employed drivers.

Leigh Day solicitor Gabriel Morrison, however, belives that BCA drivers have a “strong and winnable” claim.

He said: “As the Supreme Court in Uber pointed out, employment laws are designed to protect vulnerable workers from unfair treatment and low pay.

“Despite these laws, BCA have deprived their drivers of holiday pay and national minimum wage rights for a long time.”