Mr Stuart White v Represented by:10 Mr S Milligan - Solicitor GBRE Ltd Trading as Coldwell Banker UK — 2017

At a preliminary hearing in Glasgow on 5 April 2017, Employment Judge Lucy Wiseman considered whether Mr Stuart White was a worker for the purposes of the National Minimum Wage Act 1998 and the Working Time Regulations. The claim had been presented on 23 January 2017 and alleged unpaid wages and holiday pay arising from work done for GBRE Ltd trading as Coldwell Banker UK between September 2014 and October 2016.

The tribunal found that the respondent was a company set up to acquire and operate the Coldwell Banker franchise in Great Britain, funded by Mr White, Mr Victor Pegna, Mr Matt Begley, Mr Darren Hicks and two financial investors. Mr White and Mr Pegna were directors and held a 20% shareholding, while the financial investors held 80%. The tribunal accepted that Mr White was involved in franchise enquiries, training, marketing, meetings and reporting, but also found that the claimant was a principal in the business and had another company operating in the same sector.

The tribunal analysed the Business Plan, financial projections, correspondence and witness evidence against section 54 of the National Minimum Wage Act 1998 and the authorities cited by the parties, including Cotswold Developments Construction Ltd v Williams, Stack v Ajar-Tec Ltd, Autoclenz Ltd v Belcher and Hospital Medical Group Ltd v Westwood. It concluded that the Business Plan was not a contract under which Mr White worked, that he was not required to undertake a minimum or reasonable amount of work, that he was not obliged to perform work personally, and that there was nothing to suggest he was to receive wages rather than reimbursement of expenses.

The tribunal rejected Mr White's evidence that he expected to be paid a wage and accepted the respondent's case that the parties' documents showed an understanding that directors would be reimbursed for expenses only, with any earnings to come from commission, profit share or equity. It therefore held that Mr White was not a worker and that it lacked jurisdiction to determine the claim under the National Minimum Wage Act and the Working Time Regulations.