EAT JURISDICTIONAL POINTS – Worker, employee or neither
Extended definition of ‘worker’ etc for the purposes of Part IVA Employment Rights Act 1996 – approach to section 43K(1)(a)(i) (‘worker’) and section 43K(2)(a) (’employer’).
In construing these provisions, it was relevant to have regard to the fact that section 43K was explicitly introduced for the purpose of providing protection to those who have made protected disclosures and it was appropriate to adopt a purposive construction, to provide protection rather than deny it, where one can properly do so, see per Wilkie J in Croke v Hydro Aluminium Worcester Ltd [2007] ICR 1303, EAT. The whole purpose of this statutory extension to the definition of ‘worker’ and ’employer’ was to go beyond the normal contractual focus of those terms for statutory purposes in the employment field and did not require the existence of a contract, see per Cox J in Sharpe v (1) The Worcester Diocesan Board of Finance Ltd and (2) The Bishop of Worcester UKEAT/0243/12/DM, and extended to the situation where (as here) the individual had been introduced or supplied by an agency and was operating through their own service company (see Croke).
In the present case, the Employment Tribunal had proper regard for the contractual provisions between the parties and reached conclusions on the questions whether the Claimant was ‘introduced or supplied’ (section 43K(1)(a)(i)) that were open to it on the evidence.
As for the question of the substantial determination of the terms of the Claimant’s engagement for the purposes of section 43K(1)(a)(ii) or section 43K(2)(a), the Tribunal was entitled to look at the various contracts relevant to the relationship and to see how these worked in practice. To the extent that there was a distinction between the approach to be taken in respect of each subsection, the Tribunal made no error of law but again reached conclusions that were properly open to it on the evidence.
Appeal dismissed.
Eady QC
[2014] UKEAT 0019 – 14 – 2006
Bailii
England and Wales
Employment
Updated: 05 December 2021; Ref: scu.526977