Mr J Fergusson v Conservation Masonry Ltd — 2021

Employment Judge Murphy held that, for the period from about 18 September 2019 to 22 January 2021, Mr Fergusson was not an employee of Conservation Masonry Ltd but was a worker. The tribunal accepted that he had signed the version of the September 2019 contract for services photographed by him on his phone and rejected the respondent's later produced version as a reconstructed document; it found the respondent had lost the original signed contract. The case was therefore decided as a preliminary status issue rather than on the merits of the wage claims.

Applying Ready Mixed Concrete and Autoclenz, the tribunal found that there was sufficient control for worker-status purposes and that Mr Fergusson always provided personal service. It accepted that he worked under the respondent's direction as to site allocation, site hours, method statements and risk assessments, wore respondent-branded PPE, and generally worked full time on work allocated by the respondent. The tribunal did not accept that the substitution and freedom-to-refuse clauses in the written contract reflected the reality of the relationship; it found he was not in truth free to refuse site work at whim and that, once he agreed to a site, he was obliged to attend during the site hours until moved elsewhere.

The tribunal nevertheless held that employee status was not established because the respondent did not have the irreducible minimum obligation to provide work and/or pay throughout the relationship. It relied in particular on the period of lockdown in spring 2020, when the respondent offered no work and no pay for nearly three months. On that basis, the unfair dismissal complaint was dismissed. Because worker status was established, the Part II claims for unauthorised deductions from wages were allowed to proceed, but no substantive decision or monetary award was made on those claims at this hearing.