Mr C Baird v Represented by:15 Ms Morrison – Strathclyde Law Clinic SBT Builders — 2020

Mr C Baird brought claims of unfair dismissal, failure to pay a redundancy payment, breach of contract in respect of notice, and failure to pay holiday pay. The preliminary issue was whether he was an employee or, failing that, a worker. The tribunal heard evidence from the claimant and from Stephen and Thomas Mahoney of SBT Builders, and preferred the respondents' evidence on the central issues of how the arrangement operated in practice.

The tribunal found that the respondents were labour-only subcontractors engaged in bricklaying work, that the claimant worked for them regularly from around July 2005 to July 2019, and that he was paid by reference to the metreage of bricks laid, with labourers paid first and the balance split between the bricklayers. It found that the claimant was not required to accept work, that the respondents were not obliged to offer it, that he was not required to work fixed hours, and that he was responsible for his own tax and national insurance. The tribunal also found that the written contract signed in around 2012 reflected the reality of the relationship and was not a sham.

Applying the Ready Mixed Concrete approach and section 230(1) ERA 1996, the tribunal held that the necessary irreducible minimum for a contract of employment was missing. In particular, it found there was no mutuality of obligation in relation to the offer and acceptance of work, only limited control over day-to-day performance, and no sufficient basis to treat the claimant as an employee. The result was that the tribunal had no jurisdiction to determine the unfair dismissal, redundancy payment, and breach of contract claims.

The tribunal then considered worker status under section 230(3)(b) ERA 1996. It held that the claimant was not under an obligation to perform work personally because the contract gave him a right to substitute a trained bricklayer, limited only by the need for that substitute to be suitably qualified. On that basis, and because the claimant was free to work for others and the respondents were not customers of a business carried on by him, the tribunal held that he was not a worker. It therefore had no jurisdiction to consider the holiday pay claim under the Working Time Regulations 1998.