MR T WALSH v Impact Contracting Ltd Open Preliminary Hearing — 2019

This was an open preliminary hearing before Employment Judge Oliver Segal Q.C. The claimant, a bricklayer working through the Construction Industry Scheme, had accepted work introduced by Total Site Projects Ltd at a rate of £180 per day. The respondent was used by the agency to handle contractual, payroll and administrative functions for the engagement. The claimant brought claims for unpaid wages and holiday pay, but the tribunal first had to decide whether he was a worker within s. 230(3) ERA 1996.

The tribunal accepted the evidence of both witnesses and found there was no dispute of fact. It recorded that the respondent phoned the claimant on 30 August 2018 and summarised contractual terms which were designed to negate worker status, including no mutuality of obligation and an unrestricted right of substitution. The same day the respondent emailed a link to the full contract, backdated to 20 August 2018. The claimant said he did not read the contract until after he had finished the site work, but on 14 September 2018 he sent an online message accepting its terms.

The tribunal found that, absent the contract, worker status would have been unclear, but by at least the final two weeks of work the contract governed the engagement. It held that the claimant had to take responsibility for not reading the terms, that the contract had been carefully drafted to negate worker status, and that there was no suggestion it was a sham or failed to reflect the reality of the engagement. On that basis the claimant was not a worker within s. 230(3) ERA 1996.

As a result, both claims were dismissed. The tribunal did not award any sum for wages, holiday pay, interest, or any other remedy.