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Case Law

Was he a worker?

Yes, even though the written contract expressly stated he was an independent subcontractor in business for himself.

Boss Projects LLP v Mr G Bragg | 2013

The facts

Mr B was a scaffolding supervisor. He entered into a written contract with Boss Projects LLP who provided Mr B’s services (via two other contracting companies including Mears Ltd) to Brighton and Hove City Council.  The contract between Mr B and Boss included that:

  • Mr B was in business on his own account
  • Boss had no control over how Mr B performed his work
  • Mr B could send a substitute
  • Mr B was not entitled to holiday or sick pay
  • Mr B could undertake work for third parties at any time
  • Mr B was responsible for his own tax and National Insurance
  • Mr B was not an employee of Boss or a worker

Mr B argued that he was a ‘worker’ and claimed holiday pay.

The decision

Both the employment tribunal and the Employment Appeal Tribunal agreed that Mr B was a worker.  The employment tribunal accepted that the terms of the contract were clear – under the contract Mr B was not an employee or a worker.  The reality however was quite different.  It took into account that:

  • Mr B had been through a selection process and had the right experience and skills
  • Mr B did not provide any equipment
  • Mr B did not have any business risk
  • Mr B was provided with training and equipment by Mears Ltd
  • Mr B, contrary to the terms of the contract, was expected to carry out the work personally
  • Mr B was expected to carry out instructions within fixed hours

Upholding the decision, the EAT commented that “written contractual terms, however watertight, do not provide a complete or reliable definition of the nature of the relationship between the parties”.

In practice

This case is a reminder that, regardless of how clear and well drafted a contract may be, an employment tribunal can look behind its terms to the reality and conclude that the person is a worker and/or an employee.  Employers need to make sure that the working relationship is consistent with the terms of the contract or risk the relationship being found a sham and holiday pay (or worse) is payable.

If you are proposing to take on self-employed contractors, or you have already engaged contractors, you may wish to speak to one of our experienced team of employment law solicitors to ensure that the working relationship reflects the intention of the parties.

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