Mr K Hussain v AB Fine Art Foundry Ltd — 2020

The claimant worked at the respondent's foundry from 1 April 1994 until the arrangement ended on 21 June 2019. He presented claims for unfair dismissal, unpaid holiday pay and unpaid wages relating to a bonus, and the tribunal heard a preliminary issue on whether he was an employee under s.230(1) Employment Rights Act 1996. The respondent contended that he was self-employed.

The tribunal found that the relationship was based on an oral agreement under which the claimant worked minimum hours, was paid weekly, received overtime, and was supplied with most of the tools, materials and safety equipment. It found there was no right of substitution, that invoices were not the trigger for payment, and that the claimant's pay included both hourly work and price work. The tribunal accepted that there was some flexibility around arrival and departure times and some days off, but treated that as a pragmatic feature of a long-standing arrangement rather than evidence that the respondent lacked contractual control.

The tribunal also considered the claimant's outside artistic activity. It found that his website, book, studio work, exhibitions and occasional lecturing did not amount to him marketing himself as an artist to any meaningful degree during the 25-year period. It held that those activities were minimal in context and did not change the legal character of the relationship with the respondent.

Applying the authorities it cited, including Ready Mixed Concrete, Carmichael, Wilson, Dakin, White and Wright, the tribunal held that there was mutuality of obligation, personal service and control, and that the other terms were consistent with a contract of employment. It therefore found that the claimant was an employee from the outset. The judgment did not determine the merits of the unfair dismissal, holiday pay or unpaid bonus claims, and no remedy was awarded in this decision.