Mr D N Murphy v The Oyster Partnership — 2018

The claimant, Mr D N Murphy, was recruited by The Oyster Partnership for an Estates Surveyor role at Shropshire Council on a daily rate of £200. The tribunal found that the parties discussed the rate and the claimant's need for a six-month arrangement, but no fixed term was actually agreed in the offer correspondence, and the proposed Champion umbrella arrangement was never fully put into effect.

On the payment issue for the 32 days actually worked between 11 October 2017 and 24 November 2017, the respondent accepted that the claimant had been underpaid at the correct contractual rate. The tribunal found that this amounted to an unauthorised deduction from wages, but the complaint was already satisfied because the respondent had paid the amounts owing in full. The tribunal also accepted that the respondent had applied the appropriate PAYE deductions at the time.

The tribunal found that the claimant was not an employee of either the respondent or Champion. Applying the Ready-Mixed Concrete criteria, it held there was personal service but insufficient control, and the surrounding arrangements were inconsistent with a contract of service. That meant the breach of contract complaint could not be pursued in the Employment Tribunal under the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994.

The tribunal did, however, find that the claimant was a worker of the respondent under section 230(3)(b) ERA 1996 for the period he worked. It accepted there was an implied contract for services with the respondent, that he undertook to perform the work personally, and that the respondent was not his client or customer. On that basis the tribunal had jurisdiction to consider unlawful deduction claims for unpaid wages actually due.

The remaining claims for payment of the alleged rest of the contract term, described as 84 days' pay, and for one day taken off for stress were dismissed. The tribunal found no fixed term, no agreed notice period, and no term requiring payment after the claimant ended the assignment on 24 November 2017. It also found there was no contractual entitlement to pay for the day he did not work.