In Person For the v Mr Chris Green — 2019

The tribunal held that Mr A Watkin was a limb (b) worker under s.230(3)(b) ERA 1996. It preferred the respondent's evidence that he abandoned an initial apprenticeship, began working in November 2017 as an assistant site manager, and worked personally for the respondent rather than as an independent contractor. The tribunal found that the subcontractor terms, including the substitution and insurance provisions, did not reflect the reality of the relationship, and that the respondent was not acting as a client or customer of a business carried on by the claimant.

On limb (a) status, the tribunal found there was no mutuality of obligation and therefore no contract of service. It preferred the respondent's evidence that the claimant was paid on a price-work basis and that monthly payments varied according to the work available, referring to sums such as £440 in December 2017, £1,056 in May 2018, £512 in July 2018, and £64 in September and November 2018. Because the claimant was not a limb (a) worker, the notice pay claim in breach of contract was dismissed. The judgment also noted that an unfair dismissal claim had been rejected on issue because the claimant did not have sufficient qualifying service.

For national minimum wage purposes, the tribunal treated the arrangement as output work under reg. 36 of the National Minimum Wage Regulations 2015 and noted that reg. 59 required records sufficient to establish whether the NMW had been paid. The respondent did not produce the relevant records, so the tribunal could not determine the hourly rate on the evidence before it. It nevertheless found that the claimant was entitled to the national minimum wage and to holiday pay, and it stayed remedy to allow the claimant to refer the hourly rate question to HMRC, with either party able to apply to lift the stay.