Mr J. O’Brien v NatWest Markets plc — 2020

This was a preliminary hearing held by video on 2 November 2020. The claimant, Mr J. O’Brien, brought a single claim of unfair dismissal against NatWest Markets Plc. The tribunal first had to decide whether he had entered into or worked under a contract of employment with the respondent, because that point determined whether he had the statutory right to bring an unfair dismissal claim under section 94 of the Employment Rights Act 1996.

The tribunal found that the claimant was engaged through a personal service company and third-party suppliers, first Allegis Global Solutions Ltd and later Alexander Mann Solutions Limited. It accepted that the claimant worked on the respondent’s premises, was supervised in day-to-day work, used the respondent’s equipment, and performed his services personally, but held that those facts were consistent with the genuine contractor structure recorded in the written arrangements. The tribunal found the claimant had always understood the temporary assignment structure, had never sought to change it, and that the arrangements were not a sham.

Applying the authorities on implied contracts in agency and tripartite arrangements, the tribunal held there was no basis to imply a contract of employment between the claimant and the respondent. It found that the passage of time alone did not create employment status, that there were no material changes in how the relationship operated, and that the parties’ conduct remained fully explicable by the contractual arrangements with the intermediary supplier. The tribunal therefore concluded that the claimant was not an employee of the respondent within section 230(1) ERA 1996.

Because the claimant was not an employee, he had no right to pursue an unfair dismissal claim. The claim was dismissed. No remedy was awarded.