Employee, Worker or Self-Employed – Section 230, (B) Employment Rights Act 1996
The claimant was elected to office as a non-executive director of the first respondent; it was his case that he suffered detriments as a result of making protected disclosures and he sought to bring a claim before the Employment Tribunal (‘ET’) under section 47B Employment Rights Act 1996 (‘ERA’). The ET held, however, that the claimant did not fall within the definition of ‘worker’ under section 230(3)(b) ERA and dismissed his claim. The claimant appealed.
Held: allowing the appeal
It was not in dispute that the claimant undertook to personally carry out his duties as a non-executive director of the first respondent and there was no suggestion that the first respondent was his client or customer. The question for ET was whether there was a contract between those parties whereby the claimant undertook to perform work or services for the first respondent. Although the first step was thus for the ET to determine whether there was a contract between the two parties, it had failed to make a clear finding on that issue. The focus of the ET’s reasoning was on questions of vulnerability, subordination and dependence, which had little relevance to the claimant’s position as the holder of an office as a non-executive director, and it had failed to address questions with greater relevance to the position of an office-holder or engage with the particular factors relied on by the claimant as pointing to his having undertaken his duties pursuant to a contract with the first respondent. In the circumstances, it would be neither safe nor fair to uphold the ET’s decision on worker status. The matter would be remitted to a differently constituted ET for re-hearing afresh.
The ET had also failed to engage with the claimant’s alternative argument under the European Convention of Human Rights, whereby he sought to draw an analogy with the position of the claimant in Gilham v MoJ. Given the concession that, in principle, non-executive directors could be workers for the purposes of section 230(3)(b), the ET may have considered it unnecessary to address this point but this was unclear as it had failed to express a conclusion on the issue.
Citations:
[2022] EAT 125
Links:
Jurisdiction:
England and Wales
Employment
Updated: 13 September 2022; Ref: scu.680610