Mr D Makdani v Newcode Partnership Ltd — 2024

The claimant, Mr D Makdani, worked for Newcode Partnership Ltd from October 2018 initially through an agency, then from January 2019 under a written arrangement he had prepared and presented to Mr Dev. The tribunal found that the contract described him as a self-employed professional, required him to invoice through his company, and contained a substitution clause that was not a sham. Although the agreement also referred to statutory rights and included annual leave and sick pay wording, the tribunal found that the day-to-day relationship was not controlled like employment: the claimant decided when and how he worked, was not managed through appraisal or disciplinary processes, and could notify Mr Dev of leave rather than seek approval.

The tribunal held that the claimant was not an employee under s230(1) ERA 1996 because the essential elements of mutuality of obligation and control were absent. It also held that he was not a worker under s230(3) ERA 1996 because the respondent was, in substance, a customer of his accounting services, the remuneration and terms were negotiated, and the claimant had drafted the agreement himself. The tribunal accepted that the claimant understood he was operating on a self-employed basis, including through his references to himself as a contractor in the January 2019 arrangement, the March 2021 letter, invoices, and later correspondence.

A short-term variation between January and March 2021, used to cover a notice period, specified 4 days per week at £769.20 plus VAT and ended at the end of March 2021, after which the parties reverted to the January 2019 terms. In January 2023 there was a dispute about payment, including the claimant's request for £15,300 in advance for December 2022 to March 2023 and a separate discussion about VAT figures, but the tribunal recorded that the alleged protected disclosure about the VAT return was not referred to in the email correspondence. The claimant's engagement was terminated on 10 January 2023 on performance grounds.

Because the claimant was found to be self-employed, the tribunal concluded that it had no jurisdiction to determine the unfair dismissal/automatic unfair dismissal claim, the unlawful deduction from wages claims, or the protected disclosure detriment claim. No monetary award was made.