Mr Matthew Horner v JML Contracts Ltd — 2019

This was a preliminary hearing to determine whether Mr Matthew Horner had sufficient qualifying service to bring a claim of unfair dismissal. The respondent said his employment began on 9 January 2017 and that earlier work on the hydroelectric scheme was done on a self-employed basis. The claimant said he had been employed before that date and had enough continuous service to pursue the claim.

The tribunal found that, before 9 January 2017, the claimant worked for the respondent as a self-employed worker under the Construction Industry Scheme. It relied on the fact that he had applied through his partnership DM Fencing, correspondence was in the partnership name, he was paid under CIS with tax deducted at 20%, he completed self-assessment tax returns, and he was not sent on training courses until after January 2017. The tribunal also accepted evidence that he could have taken other work and sent his partner in his place, which told against mutuality of obligation.

The tribunal referred to the statutory definition of employee in section 230(1) of the Employment Rights Act 1996, the two-year qualifying service requirement in section 108(1), and the authorities on mutuality of obligation and the overall assessment of employment status, including Nethermere (St Neots) Ltd v Gardiner and Hall (Inspector of Taxes) v Lorimer. It concluded that the relationship changed from 9 January 2017, when the claimant signed an employment contract and later received a payslip showing PAYE and National Insurance deductions, but that there was no employment contract before then.

Because the claimant was not employed for the necessary period ending with the alleged dismissal, the tribunal held that he did not have sufficient continuous service to present a claim of unfair dismissal. The claim was therefore dismissed. No monetary award was made.