Brewinski v Interpreter Ms B C Kubikowska William Grossart — 2022

The tribunal heard complaints of unlawful deduction from wages and failure to provide an itemised pay statement. The central issue was whether Mr Brewinski had worker status when he carried out joinery work for Mr Grossart. The tribunal held that he did not. It found that the arrangement was an informal, ad hoc subcontracting relationship: work arose job by job, the parties had no written terms, the claimant used his own tools, and the respondent supplied or paid for the materials.

The tribunal accepted the respondent's evidence that the claimant worked personally on the jobs, but found that the respondent was a client or customer of the claimant's joinery business rather than his employer or an engager within section 230(3)(b) ERA 1996. It noted that the claimant's CIS registration was not determinative for employment law purposes. It also found there were no discussions at the start of the arrangement about payment net of tax, a CIS card, or payslips, and that the claimant was not paid for holidays or other non-working time.

In applying the multi-factorial approach referred to in Byrne Brothers (Formwork) Ltd v Baird, the tribunal relied on the short-term and non-exclusive nature of the engagement, the absence of mutual obligations to offer or accept future work, the high-level supervision only, and the payment arrangements, including advances made broadly in step with progress on the job. It also referred to Nursing and Midwifery Council v Somerville when noting that worker status does not require an irreducible minimum of mutual obligation. On that basis it concluded that the claimant did not have worker status.

Because worker status was not established, the claim under section 13 ERA 1996 for unlawful deduction from wages failed, and the claim under section 8 ERA 1996 for an itemised pay statement also failed. The judgment recorded no monetary award.