Case 3305241/2020 · Employment Tribunal
Mr L O’Dowd v Kempton Carr (Maidenhead) Ltd — 2021
- Case reference
- 3305241/2020
- Decision date
- 16 November 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Eeley REPRESENTATION
Parties
2 namedClaimant
Mr L O’Dowd
Respondent
Key findings
Tribunal's reasoningThe tribunal found that the claimant and Mr Kerrigan had initially agreed a written employment contract in February 2020 for a chartered surveyor role in the respondent's loan security valuation team. When the coronavirus lockdown began and there was no loan security work, the tribunal accepted the respondent's evidence that the claimant was told on 24 and 25 March 2020 that he could either take unpaid leave or be laid off under clause 16 of the contract. It held that the pandemic did not frustrate the contract because the contract itself contemplated reduced work and lay-off.
The tribunal found that the parties then agreed orally on 27 March 2020 to move away from the written employment contract and instead proceed on a consultancy basis, with the claimant generating his own work and being paid by reference to invoicing and fees. It relied on the subsequent texts and emails in March and April 2020, including the claimant obtaining equipment on 30 March, Jane Holmes sending a draft temporary contract on 2 April, and Mr Kerrigan's email on 6 April referring to payment on invoicing during the lockdown period. The tribunal rejected the claimant's later contention that the original employment contract was still in force.
When the claimant emailed on 13 April 2020 seeking to amend the arrangement and asking whether he was still employed under the existing contract, the tribunal found that he was trying to reopen the deal because the consultancy basis was not producing the financial return he expected. It held that the respondent did not agree to a second variation back to an employment contract. The claimant then walked away on 1 May 2020, and the tribunal found that he terminated the consultancy contract himself rather than being dismissed or having the contract ended by a breach by the respondent.
Because the consultancy agreement governed the relationship, the tribunal held that no notice pay, expenses, or car allowance were due, and that the claimant had not submitted invoices for the work he said he had carried out. The holiday pay claim also failed because the tribunal found that the claimant was not a limb (b) worker under the Working Time Regulations 1998: the arrangement was flexible and non-exclusive, he generated his own work, could work for others, could use a substitute, and was not integrated into the respondent's business as an employee or worker. The judgment therefore dismissed all claims.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Breach of contract | The tribunal held that the original employment contract was not frustrated by the pandemic, but that the parties agreed on 27 March 2020 to move to an oral consultancy arrangement. It found the claimant later tried to renegotiate and did not secure a second variation back to employment, so the respondent did not breach the contract when the claimant left on 1 May 2020. | Dismissed | — | — |
| Unlawful deduction from wages | No sums were awarded because the tribunal found the claimant was working under the consultancy contract, never submitted invoices, and the respondent was not in breach of any notice obligation. The tribunal also rejected claims for expenses and car allowance on the basis that those sums were not payable under the consultancy arrangement. | Dismissed | — | — |
| Holiday pay | The tribunal rejected the holiday pay claim, holding that the oral consultancy arrangement was not an employment contract or a worker's contract for the purposes of the Working Time Regulations 1998. It found the claimant was in business on his own account, could work for others, could use a substitute, and was not sufficiently required to provide personal service. | Dismissed | — | — |
Legal tests applied
12 references- Davies Contractors v Fareham UDC
- GF Sharp and Co Ltd v McMillan
- Simmonds v Dowty Seals Ltd
- Jones v Associated Tunnelling Co Ltd
- Solectron Scotland Ltd v Roper
- Abrahall v Nottingham City Council
- Edwards v Surrey Police
- Geys v Société Générale London Branch
- s.230(3)(b) Employment Rights Act 1996
- Hospital Medical Group Ltd v Westwood
- Cotswold Developments Construction Ltd v Williams
- regulation 2 Working Time Regulations 1998
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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