Claimant v Shekinah Consultants Ltd and Martec Ltd — 2022

The claimant, Mr Tejprakash Matharu, was engaged by the first respondent on 25 February 2013 under a Short Form Consultancy Agreement, with the work ending on 23 March 2021. The tribunal found that the claimant worked with the second respondent on quality management matters, but it rejected the suggestion that the IR35 CEST result determined his actual employment status. It held that the proper question was whether the written agreements and the parties' conduct showed a contract of employment or a worker relationship.

The tribunal considered the terms of the agreement with the first respondent, including the description of the services as ad-hoc, the invoicing arrangement, the indemnity clause, the termination provisions, and the express statement that the claimant was not a consultant, employee or worker of the first respondent or its client. It found that some of the work was not ad-hoc in practice because it continued routinely for years, but that this did not displace the wider contractual and factual picture. It also accepted evidence that the claimant had declared the income as self-employment in tax returns from 2014 to 2021, and relied on the claimant's own email in January 2020 saying that he was not a Martec employee and was self-employed on a contractual basis.

On the relationship with the second respondent, the tribunal found there was no express or implied contract at all. It held that the second respondent did not have real control over the claimant and that he was the pre-eminent expert directing quality management and assurance rather than an employee. Applying the ordinary status analysis under section 230 ERA 1996 and the authorities it cited, including Ready Mixed Concrete, Autoclenz, Carmichael, Stevenson Jordan and Harrison, and Bates van Winkelhof, the tribunal concluded that the claimant was self-employed, in business on his own account, and was neither an employee nor a worker. His unfair dismissal claim and both holiday pay claims therefore failed in full.