Mr D Harris (1) Mr L Kearney (2) v Excel Brickworks Limited — 2020

This was a preliminary hearing on employment status. Mr Harris had worked for the respondent since 2001, with an 8-month break around 2010, and Mr Kearney had worked for it since February 2017. Both had signed standard CIS contractor agreements, but the tribunal found they were signed on site without a proper opportunity to review them and that the written terms did not reflect the reality of the working relationship.

The tribunal found that a number of the contractual rights relied on by the respondent were not intended to operate in practice. In particular, it found there was no realistic substitution arrangement, that the claimants were required to work set hours, and that they were under the respondent’s and main contractor’s control as to what they did, when they did it, and where they went next. Mr Harris was found to have acted as the respondent’s representative on site, including attending meetings and liaising with management. The tribunal also found that the respondent directed work from site to site and that the claimants were part of a core group whom the respondent expected to continue working for it.

On mutuality of obligation, the tribunal held that this was more than a mere arrangement under which work might be offered and accepted. It found that the respondent came to rely in particular on Mr Harris, that both claimants expected to be offered the next job, and that if Mr Harris had turned down work it was highly likely he would not have been asked back. The tribunal accepted that both men did some work on their own account at weekends and that they were treated as self-employed for tax purposes, but concluded that those factors were outweighed by the practical reality of personal service, control, and ongoing obligation.

The tribunal therefore held that both claimants were employees within s.230(1) ERA 1996. It added that, if that conclusion were wrong, they would in any event satisfy the statutory definition of workers under s.230(3) ERA 1996 because they undertook to perform work personally and the respondent was not their client or customer. No monetary remedy was determined in this judgment.