7:11 am, May 16, 2024
Used car marketplace BCA is facing growing pressure to give its drivers holiday pay and at least the national minimum wage.
It uses 1,200 drivers to inspect and take cars to destinations across the UK, including to its auction hubs.
Many of them are classed as self-employed independent contractors. As such, they can’t claim holiday pay or be guaranteed the national minimum wage.
More than 800 of these so-called ‘gig economy’ workers have joined a group litigation brought by legal firm Leigh Day.
It argues that the level of control that BCA has over them, including obliging them to work between three and five days a week, means they should be classed as workers and have the rights afforded by that status.
The specialist in UK group claims said an employment tribunal ruled last May that:
- Written contracts didn’t genuinely reflect the actual agreement between BCA and the drivers
- Drivers risked punishment if they didn’t work when expected
- Pay was set by BCA and was non-negotiable
- The drivers were specifically recruited by BCA to work as an integral part of its operations
- They weren’t carrying on business on their own account
The tribunal said they should be classed as workers and were entitled to claim compensation owed in national minimum wage and holiday pay.
That led to BCA lodging an appeal, which was heard in December.
However, the employment appeal tribunal decided that there were ‘no reasonable grounds’ for it and rejected the appeal.
Now BCA, which is owned by Constellation Automotive Group, is facing more legal action for workers’ rights.
Leigh Day cites the case of Ian Williams, who has worked for BCA since August 2020 and says his working day can routinely last for 14 hours.
He receives £20 per job with another £8 if an inspection is required. If the job is more than 60 miles away, he is paid 20p per additional mile.
Williams doesn’t receive holiday pay for any time he takes off and calculates that his pay regularly falls below the current national minimum wage of £11.44 an hour.
‘The working conditions at BCA are absolutely appalling,’ he said.
‘When we appraise or inspect a vehicle, we have no control over how much the customer is quoted, but not all customers understand that and believe that I am personally responsible for the bill, which puts me in the firing line for their frustrations.’
Williams added: ‘I live in Kent but we work across the country, which means we can end up doing jobs as far as Glasgow, but we don’t get paid for the hours we are travelling.
‘I usually work with a runner driver who takes me to and from jobs, as well as a couple of other drivers at the same time.
‘Just a few weeks ago, I had to travel four hours from one drop-off to my next collection and I was trapped in the runner car all that time earning nothing.
‘From speaking to others that work for BCA, I know that my feelings about working conditions, pay and long hours are shared.’
Gabriel Morrison, a solicitor in the employment team at Leigh Day, said: ‘BCA has been unsuccessful in disputing these claims at every stage so far.
‘At the employment tribunal, the judge was unequivocal in finding that our clients were workers for BCA, specifically noting that he “did not think this was an uncertain, marginal or borderline case”.
‘Despite this, BCA continues to adopt its gig economy model in the face of this judgment, denying our clients the basic rights that they are entitled to.
‘Leigh Day is confident that the courts will continue to agree with our position, and that of our clients, that they are workers and their pay should reflect this.’
The law firm told Car Dealer the action being brought is a group litigation, meaning that all claimants, ie, BCA drivers who have signed up to the claim, are bringing the same claims with common issues of fact or law.
The tribunal makes decisions that are usually intended to be binding for that entire claimant group – for example, the May 2023 judgment was intended to apply to all drivers who were part of the claim at the time.
As such, it differs from a class action, which implies that everyone in a class – which in this case would be all BCA drivers – automatically benefit from the litigation, said Leigh Day.
Car Dealer was told by Leigh Day that BCA has asked for the employment appeal tribunal judge’s decision to be reconsidered and a hearing will take place at the Midlands West Employment Tribunal in December to consider its arguments.
The law firm added that it expects a conclusion in one to three years, but with the caveat that it was difficult to be exact about timescales because of factors that were beyond its control.
Constellation, which also operates WeBuyAnyCar and Cinch, declined to comment when contacted by Car Dealer.
Stock image used for illustrative purposes
