Mr J Campbell v The Federation of Small Business Recruitment Ltd — 2017

The claimant brought claims arising out of his work as a Membership Advisor / recruiter for the respondent, including unfair dismissal, age discrimination, associative disability discrimination, notice pay and holiday pay. The tribunal first determined the preliminary issue of status: whether he was an employee for the Employment Rights Act 1996 and whether he was in employment, or under a contract personally to do work, for the Equality Act 2010.

The tribunal accepted that the written Recruiter Agreement described the claimant as a self-employed sub-contractor and that he had signed it. It found that he was paid commission only, used his own car, paid his own business costs, accepted self-employed tax treatment, and could in principle use staff or a nominated substitute. Although the respondent’s Regional Sales Manager, Mr Paterson, sent frequent emails about targets, reporting and activity levels, the tribunal held that this did not create the necessary mutuality of obligation or sufficient control for employment status. It also held that the arrangement lacked the usual trappings of employment and that there was no agreement for the respondent to provide work to the claimant.

Applying section 230(2) ERA 1996 and section 83(2)(b) Equality Act 2010, and taking account of the authorities and tests referred to in the reasons, including personal service, mutuality of obligation, sufficient control and the Pimlico Plumbers substitution analysis, the tribunal concluded that the claimant was self-employed rather than an employee. It therefore dismissed the unfair dismissal complaint and dismissed the Equality Act complaints, without reaching substantive findings on the underlying age or disability allegations. The complaints for notice pay and holiday pay also failed for the same reason.

The respondent applied for expenses under rule 76 on the basis that the claimant had acted unreasonably in not making oral submissions on 13 July 2017, but the tribunal refused that application. It held that the case was complex, that the claimant was entitled to time to consider the respondent’s skeleton argument, and that his conduct did not meet the rule 76 threshold. No monetary award was made.