Mr David Russell v , Solicitor Zenith SAS Ltd — 2024

This was a preliminary hearing on employment status. The respondent said Mr David Russell was at all times a self-employed contractor under the Construction Industry Scheme, while the claimant said he was engaged as an employee, or at least a worker, and that the tribunal had jurisdiction to hear his claims. The tribunal accepted that there was a verbal contract between the parties, with an agreed role, agreed hours and an agreed rate of remuneration, and held that by starting work the claimant accepted those terms.

Applying the Ready Mixed Concrete approach, the tribunal found that the claimant was required to perform the work personally, with no substitution right, and that the respondent had overwhelming control over what work was done, how it was done, and when and where it was done. It also found mutuality of obligation: the respondent offered full-time work throughout the engagement, the claimant had to accept and perform it, and the respondent continued to pay him when permits were not issued and he was sent home.

The tribunal noted further features consistent with employment: the respondent provided the tools and equipment, the claimant bore no financial risk, he was integrated into the respondent's business, and he was paid at fixed rates. It rejected the suggestion that CIS registration determined status, and held that the claimant's classification as self-employed did not reflect the reality of the relationship. In light of that finding, the tribunal said it was unnecessary to decide worker status separately.

The tribunal held that Mr Russell was engaged by the respondent from 3 October 2022 to 21 June 2023 as an employee within section 230 ERA 1996, so the tribunal had jurisdiction to consider all of the claims brought. The case was then to be listed for a further preliminary hearing on case management for a final hearing on the substance of those claims.