Mr W Mitchell v Magna Asset Management Ltd — 2019

The claimant, Mr W Mitchell, brought claims for arrears of pay and unpaid expenses against Magna Asset Management Ltd. The respondent did not attend and had not served a response. The tribunal first determined status, finding that although the claimant invoiced through his company, W J M Construction, the true agreement was for the claimant to provide personal service to the respondent rather than to contract through his company.

In reaching that conclusion, Employment Judge Hopton applied Autoclenz Ltd v Belcher and Byrne Brothers (Formwork) Ltd v Baird and considered the true agreement, control, exclusivity, duration, payment method, equipment and risk. The tribunal found that the claimant had to perform the work personally, had no right of substitution, was not free to work for others, used respondent-provided branded PPE and office equipment, was paid the same as an employee would have been paid, and was treated the same as employees. The tribunal concluded that the triangular arrangement involving the claimant's company was artificial and for pay and tax purposes only, and that the claimant was a worker within s230(3) ERA 1996 but not an employee.

On that basis, the unlawful deduction from wages claim succeeded. The tribunal found that the claimant had been paid as normal until November and that an invoice sent on 25 November 2019 for £11,250 had not been paid. The judgment ordered the respondent to pay £11,250 gross, described in the reasons as the total payment due to the claimant.

The unpaid expenses element was dismissed. Because the claimant was not an employee, the tribunal held it had no jurisdiction to hear the breach of contract claim for expenses under article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994.