Mr H Berlin v Clements Agency Limited — 2023

The claimant, a chartered surveyor, had worked with Huntcrown from 1995 on an arrangement the tribunal found had been agreed on a self-employed basis, including a weekly retainer, use of office facilities and a six-month notice period, while he could continue with his own clients. From April 2014 the respondent paid him a higher weekly amount, and he continued working from the respondent's offices until the relationship ended on 2 January 2023.

The tribunal found that both sides understood the arrangement to be self-employment and that the claimant had set the terms of the original engagement. It found that he controlled where and when he worked, had no set hours or holiday entitlement, was not subject to disciplinary procedures, could work for his own clients, carried his own professional insurance, and was able to undertake outside public roles without seeking permission. Although there were features consistent with employment, including regular weekly payment and use of some respondent equipment, the tribunal held that those factors were outweighed by the indicators of self-employment.

On that basis the tribunal held that the claimant had no reasonable prospect of showing that he was an employee for Employment Rights Act or Equality Act purposes, so the claims were struck out under rule 37(1)(a). It added that, if it had needed to decide the point, there was also no reasonable prospect of establishing employee status with Huntcrown or a TUPE transfer in 2014. The holiday pay claim was withdrawn and the tribunal recorded it as dismissed on withdrawal.