Mr K Crossland v Whitehead Building Services Ltd and Morgan Sindall Construction & Infrastructure Ltd: 1604233/2024

EMPLOYMENT TRIBUNALS

Case No 1604233/2024

Between

Mr K CrosslandClaimant

Whitehead Building Services Ltd and Morgan Sindall Construction & Infrastructure LtdRespondent

Before

Employment Judge C Sharp

In person for claimant

Date 12 May 2025

JUDGMENT

The judgment of the Tribunal is that the Claimant’s claims are not well founded and are dismissed as he was not a contract worker under s41 Equality Act 2010.

REASONS

[1]The Claimant is an electrical installer. On or around 7 June 2024, he was engaged through Sphere Solutions Ltd (“Sphere”), a construction recruitment business, to attend a site in Abergavenny to undertake work. The site was project managed by the Second Respondent as the main contractor and the services contractor was the First Respondent. The Claimant first attended the site on 10 June 2024 and was asked to leave shortly thereafter. It is not necessary to go into the specifics of what happened on 10 June 2024, but it led to the Claimant presenting a claim on 10 October 2024 for disability discrimination, age discrimination and victimisation against both Respondents.

[2]The Claimant attended a case management preliminary hearing (with the other parties) on 14 January 2025 before Employment Judge Brace. It was confirmed then that the claims were based on s41. The Claimant asserted that he was employed by Sphere and the Respondents were the principles. Judge Brace ordered that today’s hearing was listed in public to consider whether the Claimant was a contract worker, should his claims be struck out on the basis that they are scandalous or vexatious or have no reasonable prospect of success, together with the possibility of a deposit order being made and steps taken in relation to any amendment application (such as the Claimant’s suggestion that he was now bringing a s60 claim or employed by a Respondent, which is not within the ET1 and emailed to the Tribunal after the hearing with Judge Brace). Having read the ET1, the Tribunal is wholly satisfied that the Claimant knowingly pleaded a contract worker case and nothing in the alternative concerning direct employment status against either Respondent.

[3]The Claimant as directed provided the Tribunal with a witness statement. The Claimant within it claimed that he had knowledge of law, dealt with claims before, and made a number of statements about the judiciary and why he was not going to comply with the directions to provide evidence as to fact, but rather write 38 pages of argument, assertion and submissions and rely on that as a witness statement. It was not possible to match up all the page references to the bundle, the Claimant having adopted a system which was unclear to the Tribunal (the Claimant accepted at the hearing the page reference did not match; in correspondence before the hearing he had been told he could not rely on his own bundle). Critically, the Claimant seemed to be contradicting himself, seeking to argue that he was really an employee of the Respondents, and provided no evidence as to fact about his employment with Sphere. This led to the Respondents seeking the Claimant from being debarred from giving evidence at today’s hearing. This is a rare step for a Tribunal to take.

[4]Having asked the Claimant about why his statement omitted any evidence of fact and how I could allow him to give evidence in such circumstances, I concluded that it was in the interests of justice to debar him from giving evidence entirely during today’s hearing. I could not fairly ask him to swear a statement of truth for such a document, and Judge Brace had been clear that evidence as to fact was required and without it, the witness could not give evidence. Setting out legal research is not providing evidence as to fact, contrary to the Claimant’s written assertions when the point was raised with him prior to the hearing. The Claimant was an experienced litigant and therefore could not fairly be treated as not understanding what was required, particularly in light of his opening statement within the document making it clear he knew he was not complying with the requirements for a witness statement. There was nothing on which the Respondents could cross-examine within the statement; it contained no relevant evidence about employment with Sphere. I reiterated that the Claimant’s case was that he was a contract worker, and he was not assisting his position by trying to change his position to claim he was employed by one or both of the Respondents. The Tribunal regularly reminded the Claimant throughout the hearing of what the legal question was, including during his cross examination of the Respondents’ witnesses and what he needed to challenge to succeed in arguing contract worker status. The Claimant declined to challenge much of the evidence.

[5]The Tribunal provided the Claimant with his own retiring room and ensured regular breaks as reasonable adjustments for his diabetes. The hearing proceeded with the Respondents’ evidence and the Claimant cross-examined them. The Tribunal heard from Bryn Jones Financial Director of Sphere, John Bounds Electrical Project Manager at the First Respondent and Scott Morris Senior Site Manager from the Second Respondent. The Tribunal was also provided with a 360-page bundle, a skeleton argument from the Second Respondent (adopted by the First Respondent) and the Claimant’s statement was treated as a written submission. The parties were limited to oral submissions of 15 minutes each, though the First Respondent gave some of its time to the Second Respondent by agreement. Judgment was reserved as it was the preference of the Claimant and a more appropriate use of the Tribunal’s resources. Law

[6]S41 EqA states: “41 Contract workers … (5) A “principal” is a person who makes work available for an individual who is—(a) employed by another person, and

(b) supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it). (6) “Contract work” is work such as is mentioned in subsection (5). (7) A “contract worker” is an individual supplied to a principal in furtherance of a contract such as is mentioned in subsection (5)(b).” Employment has a wide definition under the EqA as set out at s83: “83 Interpretation and exceptions (1) This section applies for the purposes of this Part. (2) “Employment” means— (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work”.

[7]All parties referred the Tribunal to a number of cases. As they provided submissions or arguments in writing, the Tribunal will not repeat them, but it is useful to set out a summary of the key points. The parties referred to many of the same cases in their submissions.

[8]The Tribunal needs to consider if the Claimant was employed by Sphere Solutions Ltd using the wider definition under s83 EqA. While it is not necessarily the starting point, it is useful to identify any contract between the Claimant and Sphere and whether there is an argument that it is a sham or does not reflect the reality of the relationship. The relationship can be imbalanced so Tribunals should proceed with caution when considering any contract but it also can be relevant evidence (Autoclenz Ltd v Belcher

[2011] UKSC 41

[2011] ICR 1157

; Ter-Berg v Simply Smile Manor House Ltd and others

[2023] EAT 2

[9]Context and findings of fact will be vital to reach a decision on employment. The Tribunal will need to make findings about whether the Claimant performs services for and under the direction of another person in return for which he receives payment or, on the other hand, he is an independent provider of services who is not in a relationship of subordination with the person who receives the services (Allonby

[2004] ICR 1328

); Bates van Winkhelhof

[2014] ICR 730

[10]The factors to consider when looking at employment status (even under EqA) include those set out in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance

[1968] 2 QB 497

in paragraph 515 – provision of own skill and labour in return for performance (the old phrase is master and servant relationship and also referred to as mutuality of obligation), contractual right of control over the worker, and other factors consistent with contract of service (or to include EqA wider definition). The tax position is not determinative of employment status. What is determinative is the overall picture (PGMOL v HMRC

[2024] ICR 1480

). In this case, given the wider definition of employment, it will be critical to identify if the Claimant is an independent contractor undertaking work on his own account or a contractor subordinate to the employer.

[11]Once the question as to whether the Claimant was employed by Sphere is resolved, it may be necessary to consider the contract between it and the Respondents and whether the Claimant was engaged or supplied to do any work for either or both (Harrods Ltd v Remick

[1996] ICR 846

; Jones v Friends’ Provident Life Office [2003] NICA 36(1)). That raises questions about who has made work available for the Claimant, and related questions about which Respondent is the principal in all the circumstances.

Findings of fact

[12]The Claimant on his own account in the ET1 had never previously been engaged by Sphere and operated through an umbrella company (then called Crest Plus [284]) using the CIS scheme for construction work. The contract between the Claimant and Crest Plus states that he will immediately tell Crest Plus if the Claimant ceases to be self-employed. The Crest Plus contract [286] confirms that the Claimant in an independent self-employed professional (clause 2.1) and can send a substitute to do his work (clause 3.1) provided that substitute means certain requirements.

[13]The Claimant did not send a substitute during his engagement through Sphere which only existed on 10 June 2024 (see below). The Claimant would not have been able to do without the substitute going through the First Respondent’s induction, which would have cost money (Bounds oral evidence). The Crest contract shows that it would only pay the Claimant when it received money from whoever was due to pay him (Clause 7.3); the Claimant bore the risk of nonpayment.

[14]The Claimant challenges the validity of the Crest documentation, but has provided no evidence at all to support his allegations. The Tribunal relies on the Crest documentation as being evidence of the Claimant’s contractual relationship with Crest. It was the vehicle for payment to the Claimant.

[15]An advert on Indeed was published for an Electrical Improver at the site in Abergavenny being operated by the Second Respondent the main contractor and the First Respondent as the services sub-contractor. There is a contract between the Respondents [164] setting out the work required, and one term is SP3 that the contract will not give rise to employment by the Second Respondent to anyone engaged by the First Respondent. The Respondents met weekly to review the program of works but the Second Respondent had no involvement with day to day running of the site/choice of labour and subcontractors (Morris oral evidence and statement). The Second Respondent was responsible overall for Health & Safety as the main contractor (Morris & Bounds evidence).

[16]The Claimant expressed interest in the role and provided the necessary evidence of his qualifications to Sphere. He was then put forward and accepted the offer of work [288-291], which was described as “freelance” (though Sphere accepted that it should have been referred to as “temporary” work [357]). The Claimant was not provided with tools or PPE by Sphere; PPE was provided by the First Respondent. There is no evidence of a contract between Crest and Sphere for the provision of the Claimant’s labour; the evidence shows that the Claimant personally contacted Sphere and dealt with it but there is no written contract between the Claimant and Sphere either. The Claimant has no evidence on this point. Crest’s role was limited to paying the Claimant money received from Sphere [358]. Sphere was only liable to pay when it received money from the hirer (Jones oral evidence); this was not challenged by the Claimant. Again, the Claimant ran the risk of non-payment.

[17]The Claimant was directed when to attend site by the First Respondent on 10 June 2024 (communicated through Sphere [294]). He was later directed to leave site by the First Respondent. The First Respondent, having agreed a program of works with the Second Respondent, directed what work was to be undertaken by the Claimant (though actually he undertook none). Sphere had no involvement in the hours of work, the nature of the work, or supervision of the work. As Sphere is a recruitment agency, this is entirely plausible. The First Respondent set out the hours of work, the work itself and supervised the work done. The Claimant when cross-examining the Respondent’s witnesses was expressly told he had to challenge this if he did not accept this evidence; he made it plain that he did accept that the First Respondent had control over his work, not Sphere. There is no evidence that the Claimant was subordinate to Sphere in any way.

[18]Sphere entered into a contract with the First Respondent for the provision of the Claimant [318]. Clause 9.2 says that the worker provided is not an employee of Sphere [322] and are deemed to be under the control and supervision of the First Respondent. The Second Respondent did not enter into a contract with Sphere. Sphere invoiced the First Respondent for the time spent on site; the First Respondent completed an online portal to tell Sphere about the time spent on site by those sent to it by Sphere (Bounds oral evidence).

[19]Sphere is a recruitment agency through which those looking for those to work on construction projects are connected with those looking to do that work (Jones oral evidence). There is no evidence that Sphere itself hires workers or employees and then sends them on jobs selected by it. There is no evidence of any mutuality of obligation between jobs; the unchallenged oral evidence from Mr Jones was that the Claimant could have refused the work after expressing an interest.

[20]The Claimant was paid by Crest, not Sphere, for his time on site, though Sphere decided to pay the money to Crest as a gesture of goodwill [358]. Sphere could not decide to remove the Claimant from a job and send him elsewhere (Jones oral evidence). The Claimant chose what job he accepted and in practice could not substitute another for his services (Bounds oral evidence). The Claimant did not formally tender for the work; as explained above he responded to an advert and the pay and hours were set by the First Respondent [292-294]. The myriad agreements saw the Claimant take the financial risk of non-payment by the First Respondent to Sphere and then to Crest.

[21]The tax position of the Claimant was not addressed in evidence from him. Any determination of the Claimant’s tax status is not a determinative factor. There is no evidence whether or not the Claimant advertised his services; the only evidence available is that he contacted Sphere to enquire about the role at the site. However, given his work was on a commercial basis, and not for the householder trade, lack of advertisement does not indicate anything – tendering and contact with the main contractor and large subcontractor is how work is obtained (Bounds oral evidence about tendering).

[22]The Tribunal only has oral evidence from Sphere about the creation of the relationship with the Claimant. The Claimant did not challenge Mr Jones’ assertion that the Claimant was self-employed – in essence, in business on his own account – despite the Judge reminding the Claimant this was a critical matter. The Claimant did not challenge that Sphere had no control over him and could not send him where it wanted. The Claimant is taken as accepting that he engaged with Sphere on a self-employed basis.

[23]The construction industry is one where there are chains of contracts and different relationships between people and entities. The term “subcontractor” has little meaning in its own right, simply meaning that there is a contractor above them who is contracting with the actual client. A sub-contractor could be a company, even a large one, a sole trader, or a worker sent by an agency for example.

[24]The Claimant was only on site for a few hours and undertook no work, other than induction.

Conclusions

[25]The Claimant was not employed (even as a worker) by Sphere. It had no contractual control over him, it had no supervision function, it did not pay him directly, and there was no mutuality of obligation. There was no integration of the Claimant into Sphere’s operations. The only obligation was that Sphere invoiced for the Claimant’s work and passed the money when received to Crest Plus. There was no obligation to pay the Claimant if Sphere was not paid. The Claimant did not challenge Mr Jones’ contention that he was self-employed.

[26]The Claimant, as is consistent with his Crest Plus documentation and the reality of the situation, had been hired as a self-employed subcontractor to carry out the work of an electrical improver on the site run by the First Respondent. He would have been left to carry out the work and rectify it if necessary [286 Clause 4.1]. The Claimant provided his own tools. The very limited time he spent on site means that the Tribunal is restricted by what it can look at in terms of the reality on the ground but there is nothing to suggest that the contractual position between the Claimant and Crest Plus is a sham or false – the Claimant attended with his tools to offer his labour for the task required by the First Respondent. This is consistent with self-employed status and trading on his own account with the First Respondent as the client.

[27]The First Respondent had day to day control in terms of the work to be done and the hours of work, and provided PPE and supervision, but given the context of construction work, that is not enough to render the Claimant an employee under s83 EqA. The Claimant chose to accept the offer made and was free to leave at any time. His position was no different to a tradesman being engaged by any project manager – he was told the work required and the rate available and when it was to be done in order to follow the works program. The fact that he did not raise invoices to the First Respondent does not change this – the agreement was the First Respondent would report the time worked to Sphere, Sphere would receive money for all the labour supplied and send the Claimant’s share to Crest Plus. In essence, the task of invoicing and sorting out payment was subcontracted by him using the CIS scheme to Sphere and Crest Plus; neither were actually responsible for paying him as an employer.

[28]Sphere did contract with the First Respondent to provide the Claimant. The First Respondent made work available to him. However, as the Claimant was not Sphere’s employee, but training on his own account, he was not a contract worker under s41 and the claims are therefore not well founded and are dismissed.

[29]The Second Respondent is not a principal. It had no contract with Sphere and is too removed from the Claimant’s engagement to be treated as the principal. At its highest, the Second Respondent would have gained some benefit if the Claimant had undertaken any work as part of the much larger overall project, but it had no influence or control over the Claimant’s engagement. Approved by