Mr G Maclauchlan v Short Richardson & Forth Solicitors Ltd — 2021

Mr Maclauchlan brought a holiday pay claim, and the hearing was confined to whether the tribunal had jurisdiction because SRFS said he was not a worker. The tribunal considered whether he was a worker under regulation 2 of the Working Time Regulations 1998 and section 230 of the Employment Rights Act 1996, and the parties agreed that the relevant question was whether he had a continuing contract with SRFS throughout the period from December 2014 to March 2019.

The tribunal found that the relationship began with an email exchange in October and November 2014 in which Mr Berg invited Mr Maclauchlan to conduct a financial review and then move into a part-time finance director role, and Mr Maclauchlan agreed to do so for a fee. It rejected the suggestion that the contract was with BL or Kingsmere: the emails were addressed to Mr Maclauchlan personally, Mr Berg knew nothing of BL at the time, and the tribunal found that the contract was made with Mr Maclauchlan in his own right. The fact that invoices were later issued in the names of BL and then Kingsmere did not change that analysis.

The tribunal also found that Mr Maclauchlan undertook to provide his services personally and that the relationship became increasingly integrated into SRFS's business. It relied on matters including his attendance at bank and partner meetings, dedicated email addresses, keys and unrestricted IT access, a dedicated office, business cards, and a structure chart showing him as head of the finance department. Although he also did work for Closegate and traded through business vehicles, the tribunal held that SRFS had contracted with him for his personal services rather than as a customer of an independent business undertaking.

Applying regulation 2 WTR, section 230 ERA 1996, and the authorities it cited including Bates van Winkelhof, Byrne Brothers, Hospital Medical Group v Westwood, James v Redcats, Pimlico Plumbers and Cotswold Developments, Employment Judge Green concluded that Mr Maclauchlan was a worker. The tribunal therefore had jurisdiction to hear his holiday pay claim, but this decision did not determine any holiday pay amount.