Mr S Henderson (Solicitor) For the v Respondent — 2020

This was a reserved judgment on a preliminary issue heard at London South on 5 and 6 August 2020. The claimant had presented claims of unfair dismissal, disability discrimination, holiday pay and notice pay. The issue for determination was his status: whether he was an employee, a worker, or self-employed. Employment Judge Hyams-Parish held that he was an employee within the meaning of s.230 Employment Rights Act 1996 and could therefore proceed with all of his claims.

The tribunal applied the familiar status authorities, including Ready Mixed Concrete, Market Investigations and Autoclenz, and also referred to the definitions in s.230 ERA 1996, Regulation 2 of the Working Time Regulations 1998 and s.83(2) Equality Act 2010. It found a high level of control by the respondent over the claimant and the other chimney sweeps, including the respondent’s code of practice, weekly office visits, job sheets, pricing arrangements, customer conduct requirements and expectations about availability during busy months.

The tribunal found that the written contracts did not reflect the practical reality of the relationship. Although the contracts contained wording describing the claimant as self-employed and included substitution and equipment provisions, the tribunal held that there was no genuine right of substitution and that any work the claimant could not do was in practice reallocated to another sweep. It also found that the claimant worked solely for the respondent, used MCS-branded equipment and vehicle arrangements, and was integrated into the respondent’s business. The tribunal concluded that he was, in substance, an employee in all but name. No substantive remedy was awarded in this judgment because it resolved only the preliminary status issue.