Mr D Harper v SMB Electrical Contractors Limited — 2022

The claimant brought a complaint for unpaid wages. The hearing on 21 July 2022 was conducted by CVP; the claimant attended briefly, left after about five minutes, and did not return. The tribunal proceeded in his absence. The respondent provided some documents and witness statements, and Mr Nathan Jenner gave oral evidence. The claimant provided no witness statement or documents, so the tribunal relied mainly on the respondent's evidence and the ET1.

The tribunal found that the claimant worked for the respondent from time to time as an electrician, setting his own rate of pay, which the respondent accepted. There was no written contract, and the tribunal found the agreement was limited to pay. It accepted Mr Jenner's evidence that the claimant could send a substitute or bring someone to assist him without needing the respondent's approval, and that if he did so it would be for him to pay that person. The tribunal also found that the claimant had his own insurance, provided his own tools, and invoiced the respondent under the business name 'David Harper Electrical'.

Applying section 230 ERA 1996 and the authorities cited in the reasons, including Uber BV v Aslam, Express and Echo Publications Ltd v Tanton, Pimlico Plumbers Ltd v Smith and Byrne Brothers (Formwork) Ltd v Baird, the tribunal concluded that the claimant was not under an obligation of personal service and was sufficiently independent to be treated as being in business on his own account. It therefore held that he was neither an employee nor a worker.

Because the claimant was not a worker, the Employment Tribunal had no jurisdiction to hear the claim for unlawful deduction of wages, and it also said it had no jurisdiction to hear any breach of contract claim. The judgment dismissed the claim and recorded no monetary award.