Paul Baliszewski v David Holmes Construction Limited — 2021

At a preliminary hearing on 9 April 2021, reserved on 20 April 2021, the tribunal considered whether Paul Baliszewski was an employee and/or worker when engaged by David Holmes Construction Limited as a groundworker between 2015 and 2020. The claimant invoiced weekly under the Construction Industry Scheme, had no written contract, set and increased his own hourly rate, and was paid at a higher rate than the respondent's employees to reflect his overheads. His last day with the respondent was 8 July 2020.

Applying the Ready Mixed Concrete approach and the need for the 'irreducible minimum', the tribunal found the respondent exercised only limited control. The respondent specified the site and the work required, but the claimant chose his own hours, could take days off by text, did not have to work the respondent's business hours, and was not required to wear branded clothing. The tribunal accepted that he performed the work personally and did not provide a substitute, but held that the overall picture did not establish a contract of service.

The tribunal therefore held that the claimant was not an employee under s.230(1) ERA 1996, so the notice pay and backdated pension contributions breach of contract claims were dismissed. It nevertheless found that he was a worker under s.230(3) ERA 1996 and reg. 2(1) of the Working Time Regulations 1998, relying in particular on Byrne Brothers and noting the claimant's personal service, the limited breaks in the engagement, and the fact that he was not operating as the respondent's client or customer. The holiday pay claim was left to proceed, and no monetary remedy was awarded in this judgment.