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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Plastering Contractors Stanmore Ltd v Holden (Jurisdictional Points : Worker, employee or neither) [2014] UKEAT 0074_14_0707 (7 July 2014) URL: https://www.bailii.org/uk/cases/UKEAT/2014/0074_14_0707.html Cite as: [2014] UKEAT 74_14_707, [2014] UKEAT 0074_14_0707 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE DAVID RICHARDSON
(SITTING ALONE)
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APPELLANT |
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RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR ANTHONY BERTIN (Solicitor) Yewgate Legal ![]() ![]() t/a Employment Relations Yewgate Barn Old Road Elham Canterbury CT4 6UH |
For the Respondent | MISS KEIRA GORE (of Counsel) Instructed by: OH Parsons & Partners 3rd Floor Sovereign House 212-224 Shaftesbury Avenue London WC2H 8PR |
SUMMARY
JURISDICTIONAL POINTS – Worker, employee or neither
The Claimant worked almost exclusively for the Respondent for many years unloading pallets of plasterboard and doing general work on site. He was a self-employed sub-contractor
with a CIS card. There was no obligation on him to accept work when offered and no obligation on the Respondent to offer him work. It was argued that there was no mutuality sufficient to found worker status, and there were subsidiary arguments as to control, right to use a substitute and degree of integration in the workforce. Held – appeal dismissed. The necessary mutuality existed while the Claimant was working for the Respondent: James
v
Redcats (Brands) Limited [2007] IRLR 296 considered and applied. There was no error of law in respect of Employment Judge's approach to the questions of control, substitute and degree of integration. Cotswold Developments Construction Limited
v
Williams [2006] IRLR 181, Byrne Brothers (Formwork)
Ltd v
Baird & Ors [2002] IRLR 96 and Clyde and Co LLP and another
v
Bates van Winkelhof [2014] UKSC 32 considered and applied.
HIS HONOUR JUDGE DAVID RICHARDSON
The Background Facts
"7.17 The claimant was getting increasingly frustrated at having to spend more time at home waiting for a call to tell him that there was work available. Without giving notice to the respondent he decided to leave to take up similar work with another company on 31 May 2013."
"7.14 Mr Murton said in evidence and I do find as fact that had it been the case that the claimant sent some else as a substitute, the respondent, through the site supervisor had to be sure that that person was able to work as efficiently as the claimant, had a CIS card and would be required to undergo an induction in relation to health and safety matters on site."
The Employment Judge's Reasons
"25. The onus is upon the claimant to establish that he is a worker. It is not the claimant's case that he was an employee of the respondent.
26. Did the claimant undertake to perform work personally to the respondent? I am satisfied that there was an oral agreement between him and the respondent to provide labour in return for payment. He worked on his own and did not operate as a business advertising his services to the world at large. The respondent was not his client and he provided, personally, his services as a labourer to the respondent. His hours were recorded and submitted to the respondent's office for payment. In practice he did not provide a substitute even on the days when he had to take his wife to the hospital or in connection with her medical appointments. Even if a substitute was provided that person was required to have a construction industry card and must undergo health and safety training. I am satisfied that the respondent would not have automatically accepted a substitute as it was looking for someone with the claimant's level of experience and efficiency.
27. Whilst I accept that the respondent was not obligated to provide the claimant work and the claimant was not obligated to accept it, having regard to the fact that he had been working with the respondent for 16 years, the respondent regularly offered him work and expected him to turn up for work when during working hours. In reality he did not turn down work offered to him during his time with the respondent. He worked in the same way as when he was considered an employee of the respondent between 1997 to 2001.
28. He was required to be on site at 8.00am and finished at 2.30pm when engaged in price work or 4.00pm when engaged in day work.
29. He wore safety clothing provided by the respondent such as a safety hat, high visibility jacket and gloves at its expense. He provided his own footwear.
30. From the schedules of payment he had been consistently engaged in work with the respondent for 16 years. I accept that there was the odd day or two when he did not work. He worked, almost exclusively for the respondent. He worked with minimum supervision. He knew the staff, wore the respondent's work clothes and drove its vehicles. I concluded that he had been integrated into the workforce. The respondent knew that when work was offered to him it would be accepted and it expected him to do the work on time.
31. I accept that he was not paid for the days he did not work. He was not subject to the respondent's grievance and disciplinary policy and paid his own income tax and had his own accountant and industry card.
32. Weighing up the factors on either side of the argument, on balance, I do conclude that the claimant was a worker having regard to section 230(3) Employment Rights Act 1996 and regulation 2(1) Working Time Regulations 1998."
Submissions
Statutory Provisions
"worker" means an individual who has entered into or works under (or, where the employment has ceased, worked under)—
(a) a contract of employment; or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker's contract shall be construed accordingly
Discussion and Conclusions
"First, there must be a contract to perform work or services. Second, there must be an obligation to perform that work personally. Third, the individual will not be a worker...if the provision of services is performed in the course of running a profession or business undertaking and the other party is a client or customer. In practice the last two are interrelated concepts..."
"78. As the EAT observed recently in the case of Jamesv
Greenwich Council UKEAT/0006/06 para. 54, typically the focus on mutuality of obligation arises in circumstances where a worker is employed intermittently by an employer and the question arises whether there is a contractual relationship in the period when the worker is not actually working. This is important for establishing continuity of employment (although sometimes s.212 of the Employment Rights Act 1996 will assist in that regard). The only obligations which in practice are likely to arise are some duty on the employer to offer work and some duty on the worker to accept work if offered. If there are no mutual obligations of any kind, there can be no contract. That is a simple principle of contract law, not unique to contracts of employment.
...
82 In my view, Mingeley has no relevance to this case. It cannot be doubted that whenever Mrs James is actually working she is doing so pursuant to a contract and she is providing a service for which she is entitled to be paid. If she were not paid for work done, she would obviously have a claim in contract. Mr Rose said that this would mean that each assignment would have to be treated as a separate contract. That would seem to be right, but there is no reason why each assignment should not be so treated. The only issue is whether she is entitled to receive the minimum wage for the work she does, and that depends on whether the nature of that contract makes her a worker or home worker within the statutory definitions.
83 Since when working she is plainly providing a service, the two potentially relevant questions are whether she is obliged to perform the service personally; and whether she is doing so in the course of a business. The fact that there is no contract in place when she is not working - or that if there is, it is not one which constitutes her a worker - tells us nothing about her status when she is working. At that point there is a contract in place. If the lack of any mutual obligations between engagements precluded a finding that an individual was a worker when carrying out work pursuant to an engagement, it would severely undermine the protection which the minimum wage legislation is designed to confer.
84. Many casual or seasonal workers, such as waiters or fruit pickers or casual building labourers, will periodically work for the same employer but often neither party has any obligations to the other in the gaps or intervals between engagements. There is no reason in logic or justice why the lack of worker status in the gaps should have any bearing on the status when working. There may be no overarching or umbrella contract, and therefore no employment status in the gaps, but that does not preclude such a status during the period of work. If casual and seasonal workers were to be denied worker status when actually working because of their lack of any such status when not working, that would remove the protection of minimum wage and other basic protections from the groups of workers most in need of it.
...
93. Accordingly, in my view the fact that there is a lack of any mutual obligations when no work is being performed is of little, if any, significance when determining the status of the individual when work is performed. At most it is merely one of the characteristics of the relationship which may be taken into account when considering the contract in context. It does not preclude a finding that the individual was a worker, or indeed an employee, when actually at work."
"... focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, will in most cases demonstrate on which side of the line a given person falls."
This was approved by the Supreme Court as being is in most cases a helpful approach to apply, although it must not be allowed to supplant the word of the statutes (see Bates van Winkelhof at paragraph 39).