Thomas Cordery (counsel) For the v Respondent — 2022

The tribunal heard an open preliminary issue on 25 and 28 March 2022 before Employment Judge Stout, sitting by video. Mr Manning had worked for Walker Crips Investment Management Limited as an Investment Director from 7 April 2015 to 18 January 2021. The hearing was confined to whether he was a worker for the purposes of s 230(3)(b) ERA 1996 and reg 2(1)(b) WTR 1998; it did not determine the substance of any protected disclosure allegations or the reasons for termination.

On personal service, the tribunal found the substitution arrangements in the contract to be genuine. Although Mr Manning mostly worked with Ian Amiee, who had his own agreement and sometimes dealt with trades for Mr Manning's clients, clause 1.3 and clause 2.5 contemplated work through agents or employees subject to the Respondent's approval. The tribunal held that the approval mechanism pointed to a genuine substitution provision and that, in context, a term that consent would not be unreasonably withheld would be necessary to give the clause business efficacy. It rejected the suggestion that the substitution clause was a fiction.

On the client or customer limb, the tribunal held that the Respondent was in reality a client or customer of Mr Manning's own business undertaking. It relied on findings that he brought his own clients and about £50m-£60m of funds under management when he joined, negotiated a lower tariff for his existing clients, received a £275,000 loan on agreed terms, and by the end of the engagement had about £80m-£85m under management and earned roughly £240,000 per annum. He chose when and where to work, could trade on his own account during business hours, bore the financial risk of the business, and met many of his own costs, including home office equipment, insurance and, for a period, part of the cost of a personal assistant.

The tribunal accepted that the Respondent exercised significant regulatory control, including certification under the SMCR and handling complaints, and that it could require changes to investments or temporarily prevent him from continuing in business. However, it held that this control was principally regulatory and did not outweigh the overall picture of a relatively equal commercial relationship in which Mr Manning was in business on his own account. The tribunal therefore concluded that he was not a worker under either statutory definition.