Mr Leo Davis v Trinova Real Estate LLP — 2019

Mr Leo Davis brought claims for unpaid wages, notice pay, pay in lieu of accrued but untaken holiday pay, and an uplift under s.38 Employment Act 2002. The parties agreed that each claim depended on whether he was an employee or worker of Trinova Real Estate LLP. Employment Judge Deol heard evidence on 24 and 25 May 2019 and found that the arrangement between the parties was commercial in nature rather than a contract of service.

The tribunal found that the arrangement involved commission-based or fixed-sum payments linked to acquisitions, together with monthly advances against anticipated commission. The claimant invoiced for consultancy services, was paid gross, and was expected to account for his own tax and National Insurance. The judge accepted the respondent's evidence that the payments were advances to be set against any future entitlement. The claimant had wide autonomy over how he worked, could pursue other opportunities, was under no obligation to provide any minimum level of activity, and bore the risk if no suitable deal was secured.

The tribunal considered the authorities on employment status, including Ready Mixed Concrete, s.230 ERA 1996, Byrne Brothers, Redrow Homes, James v Redcats, Cotswold Developments, Jivraj v Hashwani, Hall v Lorimer, and Pimlico Plumbers. It concluded that the claimant was providing a commercial service to the respondent, who was effectively a customer of that service, rather than working under a contract of employment or as a worker undertaking personal service for a non-customer. The facilities provided to him, the Monday meetings, and the employee-of-the-month recognition were treated as administrative or practical features and not as indicators that altered the underlying legal relationship.

On that basis, the tribunal held that the claimant was neither an employee nor a worker and dismissed all claims at first base. No monetary award was made.