Mr D N Murphy v The Oyster Partnership: 1301241/2018
JUDGMENT
[1]The respondent made an unauthorised deduction from the claimant's wages on or around 24 November 2017 when it failed to pay the claimant at the correct rate of pay for 32 days worked. The respondent has now paid the amounts owing in full so this complaint has been satisfied.[2]The claimant’s claims for breach of contract and unlawful deduction of wages in respect of 84 days pay for the alleged remainder of a contract term and 1 days pay for a day taken off are not well founded and are dismissed.REASONS
[1]The Claimant brought a complaint of breach of contract and/or unlawful deduction of wages under section 23 of the Employment Rights Act 1996 (“ERA”). His complaint relates to the fact that he says: 1.1. he was paid less than the agreed contractual rate of pay during the period of 32 days he was actually working for the respondent from 11 October 2017 until 24 November 2017; and 1.2. that he should also be paid for the duration of what he says was the agreed term of the contract until 30 March 2018.[2]By the time the evidence had been concluded and following discussions between the parties it became clear that the respondent conceded that the claimant had at the relevant time been paid less than the agreed contractual rate of pay for the 32 days he worked. The respondent had already paid the claimant the sum of £5202.93 and explained today that this sum was broken down as follows: Payments 32 days pay @ £200 per day £6400 Accrued holiday pay (28 days amounting to an accrued uplift of 12.07% per day so 12.07% x 200 x 32) £772.48 Total payments £7172.48 Additions Mileage payments £95.85 From this was deducted PAYE income tax of £1852.20 and Employee’s National Insurance contributions of £213.20. Total deductions £2065.40 Net pay £5202.93 This therefore satisfied the claimant’s complaint as to being paid less than he was due for the 32 days worked at 1.1 above. The claimant was not owed any further sums from the respondent in this regard. There was some discussion regarding the tax treatment that had been applied by the respondent. I am satisfied that the respondent applied the appropriate rate of tax and national insurance at the relevant time although it may be open for the claimant to try and reclaim tax he believes may have been overpaid by pursuing this with HMRC direct.[3]This still left the issue to be determined as to whether the claimant was owed any further monies from the respondent in respect of what he says was the remaining duration of the contract in place with the respondent. The parties were unable to resolve this element of the claimant’s claim during discussions and so a determination was required on the evidence heard today.[4]As it was late in the day when the evidence was completed, I adjourned the hearing for a reserved decision to be made on this matter.The Issues
[5]The issues I had to consider in order to determine the remaining elements of the claim appeared to be: 5.1. Was the claimant an “employee” of the respondent i.e. did he enter into or work under a contract of employment? 5.2. Was the claimant a “worker” of the respondent i.e. either an employee or someone who undertakes to perform personally any work or services for another person whose status is not that of a client or customer or any profession or business carried on? 5.3. What was the period of the contract agreed between the parties? 5.4. What (if any) was the appropriate period of notice to terminate the contract? 5.5. Did the respondent breach the contract between the parties? 5.6. What, if anything remains properly payable to the claimant in respect of the contract between the parties?Findings of Fact
[6]The claimant gave evidence himself and I heard from Ms Wibroe, Recruitment Consultant from the respondent and Mr Edwards the respondent’s Finance Manager. I have also considered bundles or documents prepared by the claimant and the respondent separately. Having considered the evidence raised, I make the following findings of fact: 6.1. The claimant registered with the respondent recruitment agency some time in 2017 and was contacted by Ms Wibroe about a potential contractor role working in Shrewsbury as Estates Surveyor for Shropshire Council (a client of the respondent) on 15 September 2017. The claimant indicated his interest in the role and was offered an interview. There were some initial e-mail discussions between the claimant and Ms Wibroe about the terms that would apply to the position. The claimant made it clear to the respondent that in order to make the role viable that he needed to be paid a rate of not less than £200 per day and needed the role to be for at least six months. The claimant was at the time living in Edinburgh, and was planning to temporarily relocate to the area to carry out the role. He anticipated incurring significant accommodation and subsistence expenses whilst working in the area and wanted to be able to offset the cost of such items against income tax. This was clearly a key element of the arrangement for the claimant. 6.2. The claimant e mailed Ms Wibroe on 26 September 2017 confirming he would be available for the interview (page 1 claimant’s bundle) and also stated: “I note that the remuneration rate shall be £200+ per day. I shall speak to a payroll company on the question of which expenses it is possible to claim – for freelance contractors such as myself it has to be financial viable for us to relocate and to sustain our overheads. The main unanswered question is the contract term – if it is to be a matter of weeks then will have to identify temporary accommodation; if longer, then I will negotiate a letting and transport my possessions down south.” 6.3. The Council interviewed the claimant for the role on 21 September 2017 and the Council decided it wanted the claimant to carry out the role. 6.4. The claimant was sent e-mail on 2 October 2017 from Ms Wibroe of the respondent (page 7-8 respondent’s bundle). This stated: “It is my pleasure to extend an offer to you on behalf of Shropshire Council for the position of Estates Surveyor. Start Date: TBC Reporting to: Estates Manager, Mark Salt Pay rate: £200 basic PAYE per day PAYE rates are subject to deductions for taxes and/or other withholdings as required by law, and inclusive of holiday pay. Your salary will be paid weekly in arrears subject to us receiving your authorized timesheet by Tuesday 12.00pm.” 6.5. Ms Wibroe stated that the e mail contained a mistake as it had the reference to “£200 basic PAYE” when it should have said “£200 Limited company” as Ms Wibroe understood that the claimant was going to engage the services of an umbrella company. I accepted this evidence. Nonetheless it was clear that the e-mail did set out the rate of £200 per day and the claimant in good faith accepted this. 6.6. The letter from Ms Wibroe went on to inform the claimant that there were two options for being paid - via an umbrella company or via PAYE and went on to set out what the claimant should do and what information he should provide. 6.7. There was no mention of the term of any contract in this offer letter. It is also clear at this stage that the payment route had not yet been decided upon by the claimant nor agreed by the parties. 6.8. The claimant replied to this email from Ms Wibroe on 3 October 2017 (page 2 claimant’s bundle) where he indicated that this was “Good news indeed”. He went on to state: “I need to learn what costs/expenses I can put through an umbrella company. Whether I stay in temporary accommodation or look to relocate will be dependent on contract and how I fit within the organisation.” 6.9. At this stage, the term of any contract had not been agreed. It was also never suggested at any time that the claimant would be an employee of the Council but would be performing this role as a “contractor” and would be paid on a daily rate for the work he did. In cross examination the claimant confirmed that he regarded himself as an agency worker for the respondent, not the Council, that he understood he did not have employment rights (including in his view to paid holiday) and that he would be paid only for the time he actually worked. 6.10. Ms Wibroe later that day gave the claimant details of a payroll company the respondent recommending using called Champion Contract Services Limited (“Champion”) who could act as an umbrella company (page 7 respondent’s bundle). However it is clear that the choice of whether the claimant should go with this umbrella company or enter into a PAYE arrangement with the respondent was entirely one for the claimant to make. 6.11. It then appears that the respondent entered into a contract with Champion in respect of the claimant’s assignment on 6 October 2017 (pages 10 to 18 respondent’s bundle). Ms Owen took me to various provisions of this contract but it is clear that the claimant was not a party to this contract (and had not seen a copy of it until during the hearing) so it has limited value in terms of determining what the contractual relationship was between the claimant and the respondent. 6.12. However I do note that this contract had the following terms. Here the respondent is the Employment Business and Champion is the Contractor: Consultant: David Murphy, being the initial person engaged by the Contractor to perform the Services on its behalf or any other suitable alternate or additional personnel provided by the Contractor to perform any part or all of the Services on its behalf in accordance with the conditions attached. Contract Term: From 11th October 2017 (“Commencement Date”) To: 27th April 2018 or such alternate date as may be agreed from time to time by the Parties as the date of completion of the Project subject to the termination provisions in clause 6 of the attached conditions. Notice of Termination: Either party my terminate a contract with immediate effect 6.13. The claimant went on to send information to Ms Wibroe on 9 October 2017 (page 3 claimant’s bundle) including his NI number, a copy of his passport and bank details. He also stated: “I have not as yet elected to engage a payroll company and work under an umbrella company – this I will evaluate over the course of the next few days” 6.14. The claimant started work at the Council on 11 October 2017 but the arrangements for how he would be paid had not been finalised. The claimant e-mailed Ms Wibroe on 12 October 2017 with an update of how the role was going and with a query around rates and expenses (page 19 respondent’s bundle). In this he also stated: “Not decided if it is worthwhile going through an umbrella company” 6.15. Ms Wibroe e mailed the claimant on 17 October to remind him to submit his timesheets (page 21 respondent’s bundle) and the claimant replied later than day (page 20 respondent’s bundle) stating that: “decided not to input my timesheet until such time as I have sorted out whether or not it is worthwhile joining an umbrella company” The e-mail went on to query some tax issues and queries he was having with the process. Ms Wibroe replied to this e mail (page 20 of respondent’s bundle) and stated: “With regards to the weeks you have worked thus far we will have to pay you PAYE as you’re not currently signed up to an Umbrella company” She also offered to contact Richard Allen at Champion to assist the claimant, which she did on 18 October 2017 (page 23 of respondent’s bundle). 6.16. Around this time, at the suggestion of the respondent the claimant had contacted Champion to investigate using them as an umbrella company. The claimant e-mailed Chris Bloor of Champion on 24 October 2017 setting out various details that had been asked in an application form. In particular: “My daily rate is £200 per day. I understand that I have an initial 6 month contract. I commence work on Wed 11th December” 6.17. The plan was that the respondent would charge the Council in respect of the claimant’s services at a daily rate of £200 and the Council would pay these amounts to the respondent. The respondent would then pay these sums to Champion who would then pay the claimant. In order for this arrangement to be tax compliant the claimant was required to complete a Supervision/Direction/Control (SDC) test, which asked a number of questions about the status of the parties and nature of the relationship. The claimant initially did not pass this test but on the second time this was successful and this as confirmed to the claimant on 3 November 2017 by Champion (page 7 claimant’s bundle). There are some emails between the claimant and the respondent between 26 and 30 October 2017 (pages 25 and 26 respondent’s bundle) which detail discussions around the issues the claimant was having regarding passing the SDC test and also not getting the clarity he needed around the claiming of expenses. Ms Wibroe suggested some alternative umbrella companies that the claimant might want to consider using. 6.18. The claimant did not sign any terms and conditions with Champion. The claimant sent 18 days worth of timesheets for work he had done at the Council to the respondent via its online system to be processed on or around 5 November 2017. He also submitted various claims for mileage direct to the respondent (page 29 respondent’s bundle). On 7 November 2017 the claimant contacted Richard Allen at Champion (page 8 claimant’s bundle) providing certain information and documents and asking further questions about the arrangements in particular the status of his ability to offset expenses against tax. In particular he states: “I have sent to Oyster 18 days worth of timesheets for you to process – you have details of my bank account.” And “Who is my employer – the Oyster Partnership or Champion” 6.19. Champion issued a payslip to the claimant dated 10 November 2017 in respect of these 18 days (page 9 claimant’s bundle). This showed the 18 days being paid at a rate of £200 per day in the payments column. It also highlighted various deductions being made. It had a figure of 1105.27 for PAYE tax and £129.02 for employee’s national insurance. The parties appear to accept that these sums were validly deducted. However it also had a deduction of £20 described as “Champion Margin” and £416.48 described as “Employer Costs”. 6.20. The claimant challenged the deduction of Employers Costs and Margin with Champion and was sent e-mail from Ben Lightbown from Champion on 14 November 2017 (page 32 and 33 respondent’s bundle). This email clarified that the employer’s costs related to Employer’s National Insurance Contributions (“ENIC”) and the Apprenticeship Levy. 6.21. The claimant was unhappy with this and e mailed Mr Lightbown on 14 November 2017 copying in Ms Wibroe and these emails are shown at pages 31 and 32 of the respondent’s bundle. The claimant complains to Ms Wibroe: “I am spending an inordinate amount of time on setting up this umbrella company and am faced with flim flam half truths and bullshit. First the SDC nonsense, restrictions on what I can claim (which may be nothing) and any claim is done retrospectively at the end of the financial year and simultaneously wholesale deductions for which I have not been informed.” He goes on to say “So what is the point in being a freelance contractor and working away from home.” 6.22. The main concern that the claimant has with the arrangement appears to be the deduction of ENICs from his daily rate. At this time, the claimant had also put arrangements in place to look for and rent a flat as his partner had decided to come down to Shropshire and stay with him. The claimant gave evidence that based on reassurance from Shropshire Council that he was doing a reasonable job and had integrated well, and because of projects he knew were ongoing at the Council, he had an expectation that the role would continue until at least the end of March 2019. He also stated that he would not have come down from Glasgow to work in Shropshire unless there was a six month contract. 6.23. He emails Ms Wibroe again on 16 November stating: “Have made an offer to rent a flat in Shrewsbury – before I sign the lease I need to know what is to be done about ENIC – essentially what I pay on ENIC for a month will cover the majority of the flat rental. ENIC completely negates working for an umbrella company and I should have been forewarned. I should not be liable for the payment of ENIC in any shape or form. Secondly, my salary for last week has been sent to Champion – please can you demand this is returned to you without processing.” 6.24. A further payslip was issued on 17 November 2017 for an additional 5 days worked (page 12 claimant’s bundle) and once again the Margin and Employers Costs deduction was made, being £30 and £106.58 respectively. At this point the claimant states that he repudiated the contract with Champion. He e mailed Ms Wibroe on 18 November 2017 (page 13 & 14 claimant’s bundle) complaining of the actions of Champion. He then e mailed Ms Wibroe again on 19 November 2017 (page 15 claimant’s bundle) and also informing her that he had terminated the relationship with them. He states: “The first point to emphasise is that Champion were instructed on 2 separate occasions not to process by salary” He also states: “I have today rejected electronically their contract of employment and assignment and wish no further dealings with them – I shall not be filling in any further timesheets until all payroll matters have been settled. ….I am perfectly willing to fulfill the contract with SC, live away from home with all that entails and to meet all the various costs. I have made an offer to lease a flat for 6 months and therefore it is imperative the question of ENIC is resolved over the next few days” 6.25. Ms Wibroe replied and offered to meet to discuss in person. The claimant emailed in response (document 16 claimant’s bundle) stating: “As intimated I really do not wish the hassle of having to constantly deal with payroll issues – I had to take last Thursday off for stress/anger as a consequence of the actions of Champion” 6.26. Ms Wibroe met with the claimant on 22 November 2017 to try and resolve the situation. She suggested that the claimant be engaged directly on the payroll with the respondent in order to be paid for the work he had done, but indicated that the deduction for ENIC would need to be taken from the £200 a day rate if that option were to be taken. The claimant gave evidence that this would make it unviable for him to continue to live and work in Shrewsbury as this would amount to a 20% reduction in his net pay. Ms Wibroe e mailed the claimant on 24 November 2017 (page 42 and 43 respondent’s bundle) stating that in order for the respondent to pay him for the days already worked, he would need to contact Champion confirming he would like the money returned. The claimant replied on the same day (page 42 respondent’s bundle) and confirmed that he had resigned from his position at the Council that day and asked for the payment to be made via the payroll at the respondent and asked about the process of returning the funds paid already by Champion. 6.27. The claimant confirmed in his evidence that the issue of a notice period had never been discussed or agreed and he had never signed a contract. He said he would expect normal practice to be 7 days on either part but his view was that because the respondent had repudiated his contract it would end immediately. 6.28. There was then some further correspondence between the parties regarding the return of monies, what the claimant should be paid and similar. Payslips were prepared by the respondent to show sums that may be due to the claimant but these were never sent to him. However it is not necessary to make any findings in this regard as the matter of what the claimant’s rate of pay should have been and what is due to him, has been conceded by the respondent.The Law
[7]Is the claimant an employee? 7.1. Section 230(1) ERA an employee is defined as “an individual who has entered into or works under (or where the employment has ceased, worked under) a contract of employment”. 7.2. Section 203(2) ERA defines a “contract of employment” as a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing”. 7.3. The question of who is an employee must be decided after weighing up all the relevant factors and applying a number of tests. The decision of Ready-Mixed Concrete (South East) Limited v the Minister of Pensions and National Insurance [1968] 2 QB 497 determined that the key tests for the existence of a contract of service (the multiple tests) were that:1.1.1 An agreement exists to provide the servant’s own work or skill in the performance of service for the master ('personal service') in return for a wage or remuneration.1.1.2 There is control of the servant by the master ('control').1.1.3 The other provisions are consistent with a contract of service ('other factors').[8]Is the claimant a worker? 8.1. Section 230 (3) ERA defines a “worker” as “an individual who has entered into or works under (or, where the employment has ceased, worked under) –(a) a contract of employment; or(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly” 8.2. Limb (a) of the above involves exactly the same consideration as 11.1 above. There are a number of relevant cases dealing with limb (b) of the above (which is the relevant provision in this case). Firstly the case of Byrne Brothers (Formwork) Ltd v Baird [2002] ICR 667 where the EAT described the distinction between: “on the one hand, workers whose degree of dependence is essentially the same as that of employees, and, on the other, contractors who have a sufficiently arm’s-length and independent position to be treated as being able to look after themselves”. In this case, the key factors to consider were:• Did the individual undertake under the contract to personally perform work or services?• Was the status of the "employer" under the contract that of a customer of a business undertaking carried on by the individual?• Was there mutuality of obligation between the individual and the "employer"? There is also the case of Cotswold Developments Construction Ltd v Williams [2006] IRLR 181 where Langstaff J said (at paragraph 53): '… a focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, will in most cases demonstrate on which side of the line a given person falls.'[9]The Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994 provides that: Proceedings may be brought before an [employment tribunal] in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if— (a)the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine; (b)the claim is not one to which article 5 applies; (c)the claim arises or is outstanding on the termination of the employee’s employment of the employer against whom it is made; and[10]Section 13 of the ERA provides that a worker has the right not to suffer unauthorised deductions from their wages. Section 23 ERA provides a right for a worker to present a complaint to Employment Tribunal that their employer has made an unlawful deduction from their wages, contrary to section 13.Conclusion
[11]The first thing that needed to be determined was the basis for the relationship between the claimant, the respondent, Champion and to a certain degree, the Council. I conclude that the claimant never had any form of contractual relationship with Shropshire Council and it was not contended by either of the parties that this was the case. At all times the only contractual relationship with Shropshire Council was maintained by the respondent.[12]Ms Owen submits that Champion was the claimant’s employer and that the respondent only briefly and ostensibly became his employer for the purpose of retrospectively paying him for the work he did at Shropshire Council. She submits that this is a contract of employment implied by necessity, postdating the period of work for the Council for the sole purpose of enabling the claimant to be paid. She points to the written contract between the respondent and Champion (pages 10-18 respondent’s bundle) which states that the claimant is not an employee of the respondent and argues that a contract of employment between the claimant and Champion was supposed to be entered into and is therefore implied as a result of this.[13]The claimant alleges that the respondent was his employer during this period. He points out that he never signed an agreement with Champion and although there was also no written contract in place between him and the respondent (which he says was unusual), there was an offer and acceptance in place on the terms, and that he agreed to provide the work to Shropshire Council on behalf of the respondent who maintained the relationship with the Council.[14]However, looking at section 203 (1) of the ERA, I have concluded that the claimant was never an employee of either the respondent or Champion at any point during his time performing activities for Shropshire Council or after it. There was clearly an agreement in place between the claimant and the respondent to provide his own work or skill in the performance of service ('personal service'). However I have concluded that during this time, there was insufficient control of his activities by the respondent or Champion. The only interaction the claimant had with either the respondent or Champion was in relation to the manner he would be paid and such like. There was no involvement in day-to-day work tasks at all. Moreover the other provisions in place at this time are inconsistent with a contract of service. He describes himself as a “freelance contractor” (paragraphs 6.2, 6.21 above); he was paid via a daily rate rather than weekly/monthly salary (paragraph 6.4); he submitted timesheets; it was intended that the claimant contract via a personal service or “umbrella company”; there was no expectation that he would be paid for holiday or sickness and the contract that was entered into between the respondent and Champion expressly states that the claimant is not an employee of the respondent. It does state that there will be terms and conditions of employment between Champion and the claimant, but these were never entered into and there is nothing in the arrangements between the claimant and Champion to suggest an employment relationship ever existed. The fact that the respondent paid the claimant via PAYE (albeit following protracted dispute and discussion about how much was owing) does not conclusively show an employment relationship ever existed.[15]One consequence of my conclusion that the claimant was not an employee, is that he is not able to bring a claim for breach of contract in the Tribunal. This jurisdiction is afforded to the Tribunal pursuant to the Employment Tribunals Extension of Jurisdiction (England & Wales) Order 1994. It is clear that this gives a remedy for “a claim of an employee……which claim arises or is outstanding on the termination of the employee’s employment” . Therefore the Tribunal has no jurisdiction to hear the claimant’s complaint of breach of contract and it is accordingly dismissed.[16]In relation to whether the claimant was a worker, although I was not addressed by either party on this, I conclude it is necessary to determine this issue to work out the nature of what can be claimed by the claimant. Firstly looking at limb (a) of Section 230 (3) of the ERA, this does not apply because I have already concluded that there was no contract of employment between the claimant and the respondent.[17]However looking at limb (b) of section 203 (3), there are three elements that the claimant needs to satisfy to qualify, namely:• the existence of a contract;• that he undertakes to personally perform work or services for another party; and• that the other party is not a client or customer of a profession or business undertaking carried on by him. There also needs to be sufficient mutuality of obligation.[18]Firstly, although no formal written contract was in place, there was clearly a contract between the claimant and the respondent at all times during the working relationship. The claimant was offered a role in writing by the respondent and following various further discussions by email and over the telephone, the claimant started to work and was ultimately paid by the respondent for the work provided. There was at the very least, an implied contract for services in place during this period. The claimant would carry out the work on behalf of the respondent who then billed its client, Shropshire County Council for the work done by the claimant on a daily basis.[19]There was also a contact in place between the claimant and Champion which I have concluded was between 7 November 2017 (when the claimant instructed Champion to process his timesheets via their payroll) and 19 November 2017 when he terminated the relationship[20]There was never a contract in place between the claimant and Shropshire Council so the claimant cannot have been a worker of the Council[21]Secondly, I also conclude by weighing up the facts found that the claimant was engaged personally to carry out the work himself throughout the entire period from 11 October 2017 until 24 November 2017. I find that this engagement was between the claimant and the respondent and not between the claimant and Champion. The contract between Champion and the claimant, although notionally described as an employment relationship was really just a vehicle by which the claimant would have his pay processed. It only started after the claimant had begun to provide services and finished before the services were completed. No services were ever provided to Champion by the claimant.[22]The primary engagement at all times was between the claimant and the respondent. The respondent was responsible for providing services to the Council and they engaged the claimant to perform these services. As to whether the work of services was provided personally, although nothing was specifically agreed verbally or in writing between claimant and respondent about the right to delegate or substitute, the Claimant never as a matter of fact sent a substitute, nor did he ever ask to. It is clear to me that Shropshire Council wished to have the claimant, because he personally had the skills required to carry out the work required (hence the interview and feedback he received about the job he was carrying out).[23]I have looked at the third element of the limb (b) test and considered next whether the claimant's work was done with the respondent in the capacity of a client or customer of the claimant. I find that that the work that the claimant did for the Respondent was not done in the capacity of the respondent being a client or customer of the claimant. The claimant was not in business supplying his services to the respondent. He applied for a specific role that the respondent was responsible for sourcing on behalf of its client. The client/customer relationship at all time here was between the respondent and the Council. The respondent engaged the claimant in order that it could fulfill its responsibilities to its client. Neither party ever regarded the respondent as a client of the claimant. Even though there was the option of using an umbrella company, this was really a vehicle to enable the most effective tax treatment to be in place and in any event never really was fully put into operation as the claimant terminated it and all monies were returned.[24]Lastly I have concluded that there was sufficient mutuality of obligation between the claimant and respondent to confer worker status. The respondent relied on the claimant to provide services to fulfill its obligations to its client, the Council. The claimant expected that for the days he to work to fulfill this obligation, he would receive the appropriate rate of pay.[25]Therefore as the claimant was a worker of the respondent under limb (b) of section 203 (3) of the ERA from 11 October until 24 November 2017 this Tribunal does have jurisdiction to deal with his complaint for any unpaid wages under section 13 of the ERA.[26]The parties have resolved the first element of the claimant’s claim i.e. 32 days he was actually working for the respondent from 11 October 2017 until 24 November 2017 by consent. However the claimant also contends that he is entitled to be paid for the full period of the contract that was agreed between the parties on the basis that the respondent repudiated this contract and so he is entitled to be paid the remainder of the term of the contract in full. This would generally be regarded as a claim for breach of contract and I have already concluded that the claimant is unable to bring such a complaint. However there must also be an argument that if a fixed term of contract was agreed between the parties, if there was subsequently a repudiation of contract of one party, then the remainder of the term could in theory amount to sums properly payable under the contract. He also claims one day pay he had to take off for stress due to the actions of Champion.[27]The next question I asked myself was what was the period of the contract agreed between the parties? The parties clearly had discussions at the outset about the length of the term of the contract (paragraphs 6.2, 6.2 and 6.8). The claimant’s expectation was that it would need to be at least 6 months and the terms of the contract in place between the respondent and Champion show that there was an understanding that the assignment would last at least six months. However I do not find that there is any evidence to suggest that a fixed term of 6 months employment was actually agreed between the parties at the time of entering into the contract. The contract between the respondent and Champion which set out the understanding at least of the respondent of what the relationship would be was clear that contract is said to from 11 October 2017 to 27 April 2018 “or such alternate date as may be agreed from time to time by the Parties as the date of completion of the Project subject to the termination provisions in clause 6 of the attached conditions”(para 6.12). That notice of termination provision also provided that either party may terminate a contract with immediate effect. However this is of limited relevance other than as background as the Champion arrangement really never got off the ground.[28]The terms of the contract between the respondent and the claimant are therefore to be determined from the various pieces of correspondences between the parties and the surrounding circumstances together with any implied terms necessary. The offer e-mail sent on 2 October 2017 which was referred to many times by the parties does not make any reference to contract term (paragraph 6.4 above). The claimant does mention the length of the contract term in e-mails with Ms Wibroe (paragraph 6.2 & 6.8 ) but I do not find any clear agreement was reached. The claimant informs Champion that he understands that he has “an initial 6 month contract” (paragraph 6.16) but nowhere is this clarified and agreed expressly. In addition, Champion was not in a position to agree such a term as it did not have authority to act on behalf of the Council or the respondent.[29]There is also no necessity for such a term to be implied. Contracts of this nature are often temporary in nature and it is clear that how long the claimant would be working at the Council depended on their needs – hence perhaps their decision to use an agency worker rather than engage an employee to do the role. The nature of the engagement involved a degree of flexibility. I do not find that it is likely that either the Council or the respondent intended that a fixed term of 6 months agency work would be agreed from the outset.[30]The claimant clearly had an expectation he would be needed for six months and may have been given indications of such from the Council, particularly as he was obviously doing good work for them whilst he was there. However there was no contractual nexus between the claimant and the Council. The only contractual arrangement of relevance in terms of length of contract was between the claimant and respondent and no such term was agreed here.[31]The contract was effectively a day-to-day contract whereby the claimant provided services and the respondent paid him for each day upon which those services were provided. Although it was anticipated that it would last 6 months, no guarantees or fixed term was agreed between the parties. The claimant himself terminated the contract with immediate effect and made no comment regarding the remaining term of the alleged contract at this time.[32]As to what the appropriate period of notice to terminate the contract was, I also find that no specific term was agreed by the parties. I suspect that the claimant’s expectation of a week’s notice would have been what might have been agreed had the parties addressed their minds to this issue. This is however not addressed or documented in any of the email correspondence between the parties at all. This is also not a term that needs to be implied by necessity due to the nature of the contract in place by which services were delivered as required. Had I found that the claimant was an employee of the respondent, then the provisions on minimum periods of notice set out in section 86 of the ERA might be relevant, but I am clear that the claimant was never such an employee.[33]It is not necessary for me determine whether there was a repudiation of the contract by the respondent. There was no term left remaining at the time the contract was terminated so it makes no difference what the reason for termination was. The claimant makes reference to the fact that there had been a constructive dismissal (in his view) and makes reference to the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221. It may well of been the case that a failure to pay an employee at the correct and agreed rate of pay would have been a fundamental breach of an employment contract entitling an employee to resign and claim constructive dismissal (albeit that such a claim would have limited value given my conclusions on term of the contract and what his length of service would have been). However the claimant was not an employee of the respondent.[34]The contract for services came to an end by the claimant informing the respondent that he had terminated the assignment on 24 November 2017. No further sums became properly payable by the respondent to the claimant after this time, as he had ceased to provide those services. Therefore his claim in relation to any possible unlawful deduction of wages after this point must fail.[35]I also find that no sums were payable to the claimant in respect of the one day he did not work due to stress. It is clear that the claimant would only be paid for days that he actually worked and there was no term as to pay in the event of sickness (whatever the cause of this). Therefore this claim is also not well founded and fails.