In person For the v Ms B Herbert, Consultant — 2022

This was an open preliminary hearing before Employment Judge K J Palmer sitting alone on 21 March 2022. The issue for decision was Mr Brennan’s employment status for the period 2017 to 2020, namely whether he was an employee, a worker, or self-employed. The tribunal recorded that the respondent’s case was that he was genuinely self-employed, while Mr Brennan said he was an employee. The tribunal also noted that the other claimants in the proceedings had been accepted by the respondent as employees.

The respondent relied mainly on a written agreement dated 28 September 2017 and on the evidence of Ms Patel, its Chief Financial Officer. The agreement stated, among other things, that there was no requirement for Mr Brennan to provide services personally, that the parties intended him to be self-employed, that he was not an employee, worker, agent or partner, and that he was responsible for his own tax and National Insurance. The tribunal found that the respondent had produced limited evidence about Mr Brennan’s day-to-day work.

Mr Brennan’s evidence was that, despite the wording of the agreement, the reality was that he worked in the same way as the other teachers. He said he used College space and computers, taught Sociology, Psychology and Business, was under the authority of the College, attended staff meetings, wrote and marked progress tests and mocks, submitted monthly timesheets, and was invited to College events. He said he only ever performed the work himself, that substitution was never intended in practice, and that when ill he rearranged classes rather than sending someone else.

The tribunal preferred Mr Brennan’s evidence on balance. It found that he provided services under a contract to be performed personally and that the respondent exercised sufficient control over his work, including setting the work he did and treating him as any other teacher on College premises. The tribunal held that payment without PAYE deductions was not determinative. Applying section 230 ERA 1996 and the Ready Mixed Concrete authorities, it concluded that Mr Brennan was an employee at the material time. The judgment did not determine any substantive claim or award any remedy.