Mr R Patykivskyi v City Site Solutions Ltd and Rocket PAYE Ltd: 2216430/2023 and Others
EMPLOYMENT TRIBUNALS
Case No 2216430/2023, 2214071/2023, 2305171/2023, 2216737/2023
Between
Mr R PatykivskyiClaimant(1) City Site Solutions Ltd (2) Rocket PAYE LtdRespondent
Before
Employment Judge AdkinIn person for claimantDate 28 February 2025
JUDGMENT
(i) The complaint of direct race discrimination pursuant to sections 13 and 39 of the Equality Act 2010 is not well founded and is dismissed.(ii) The Claimant was a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996. The Claimant’s claim for holiday pay is well founded.(iii) The Second Respondent shall pay the Claimant £1,754.32 accrued but unpaid holiday pay. This figure is gross and should be paid subject to a the appropriate deduction for income tax and national insurance.(iv) All complaints against the First Respondent are dismissed. 1 of 2 Case Number: 2216430/2023, 2214071/2023, 2305171/2023, 2216737/2023
REASONS
[1]The Claimant has requested written reasons in respect of the complaint of race discrimination only but not the claim for holiday pay. The reasons will be provided in relation to the race discrimination complaint in a separate document in due course.[2]The Second Respondent is reserving its position in relation to whether to request written reasons for the holiday pay claim with 14 days of the date that this order is Quantum[3]The parties were provided with the following calculation of quantum for holiday pay in draft and neither disputed the calculation at the hearing:3.1 The Claimant worked 147 days and was paid a gross £16,637.76 (pay to 31 March 2023 of £6,834.30, page 117 plus pay 1 April 2023 to dismissal £9,803.46, page 106). This means that he was paid £113.18 per day.3.2 The Claimant worked 29.4 weeks which was 56.5% of a full year.3.3 His annual leave entitlement was 28 days. 56.5% of 28 is 15.8 days which is rounded down to 15.5.3.4 15.5 days x £113.18 is £1,754.32.[1]Following a two-day hearing on 27, 28 February 2025, an oral decision was given in this claim dismissing the complaint of direct race discrimination, but finding that the Claimant was a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996 and the complaint for holiday pay from the Second Respondent was well founded.[2]All complaints against the First Respondent were dismissed.[3]The judgment was confirmed in writing in a document dated 28 February 2025[4]The Claimant has requested written reasons for the decision in the case of race discrimination and the Second Respondent has requested written reasons in relation to the worker status and holiday pay. Accordingly I am providing reasons for both decisions. 1 of 15 Overview[5]This is a case brought by the Claimant, a building labourer, pursuing claims of holiday pay and direct race discrimination based on his Ukrainian nationality.[6]The work he carried out was in the period January – October 2023.
Evidence
[7]I have been provided with a bundle of documents of 125 pages and the Claimant’s “Contract for Services” dated 1 April 2022 which is six pages in length.[8]Additionally there are three witness statements, a witness statement of Alex Hough, a witness statement of Julia Kazakova, Account Manager at Rocket PAYE Ltd and a witness statement from Mr Burrows. There is a short one page witness statement from the Claimant.[9]Ms Kazakova did not attend to give evidence.[10]I have heard evidence from three witnesses, the Claimant himself and Mr Burrows (First Respondent) and Mr Hough (Second Respondent). Each witnesses answered questions from me and the opposing parties.[11]I find that all three witnesses giving oral evidence have given honest answers. There is not much factual dispute between although they each know about slightly different things. There is not a complete overlap between the knowledge of the three witnesses.
Facts
[12]The Claimant began working on site as a building labourer in January 2023. Contractual arrangements[13]In terms of the contractual arrangement the First Respondent, City Site Solutions which I will just call “City Site” for this judgment contacted the Second Respondent Rocket PAYE Ltd (“Rocket”) about the Claimant starting work.[14]City Site requested to get him ready on payroll as a “labourer” to be paid PAYE.[15]In an email at page 56 of the bundle the Claimant is described as a labourer and as a result City Site ask that he is described as “Rocket Hybrid”.[16]That is by contrast with another individual Keith Penfold who was a Site Manager and described as “Rocket CIS”. It has been explained to me that Rocket Hybrid meant that he was being paid tax as PAYE but he was self employed and not under the CIS (Construction Industry Scheme) system. By contrast Mr Penfold was being paid under the CIS system. 2 of 15 CIS[17]The parties referred to the Construction Industry Scheme (“CIS”), which is operated by HMRC. The government website contains the following information: Under the Construction Industry Scheme (CIS), contractors deduct money from a subcontractor’s payments and pass it to HM Revenue and Customs (HMRC). The deductions count as advance payments towards the subcontractor’s tax and National Insurance. Contractors must register for the scheme. Subcontractors do not have to register, but deductions are taken from their payments at a higher rate if they’re not registered. Working arrangements[18]The Claimant worked on various different building sites through his engagement with the Respondents.[19]As to working hours, he explained that on one of the building sites there was a regular schedule, he explains it was 7:30am to 5pm Monday to Thursday and then different but regular hours on Friday and Saturday. In his witness statement he suggested that that was for the whole period but in fact he acknowledged in his oral evidence that was one of several different sites that he worked at. I infer from the hours shown on his payslips that at least one of the other building sites he worked at during the material period had regular hours each week. There are other periods where the hours varied from week to week.[20]The Claimant said that he followed the hours schedule prescribed and site policies and rules and the direction of a supervisor. Tax[21]On the 16 February the Claimant sent a UTR tax number to Rocket he says at the request of the First Respondent City Site. The Second Respondent Rocket responded saying “no” to payment under CIS because he was a labourer. Payslips & hours[22]I have been provided with payslips in the agreed bundle of documents. These documents begin at page 87. Within the 9-10 month period that is material to this claim, there were blocks of time when the hours worked by the Claimant were regular.[23]For the period running from the middle of January to the end of March there are eleven payslips in a row where the Claimant is paid for 54 hours a week each week. 3 of 15[24]There were then several weeks in April where there is no work, the Claimant says there was a period he did not work and then did a small amount of work for a completely different agency called Crest Plus.[25]Later on from the end of April to 27 September there are 22 weeks of work. Of those 14 weeks are the Claimant worked exactly 45 hours. The other eight weeks are for varying periods less than 45 hours. CIS request refusal[26]On 25 May 2023 there was a telephone conversation in which the Claimant requested but the Second Respondent refused to change the Claimant to paying him under CIS. The Claimant says that Rocket said it would be illegal because he was a labourer and he cannot be paid under CIS.[27]The Claimant says he spoke to someone from the UK who worked on the same basis as him on the same terms and schedule and did get paid under CIS. The Claimant cannot recall his name. We have not had any evidence of that person and both Respondents deny that there was anyone working as a labourer on the same basis as the Claimant being paid under CIS. Grievance[28]There was a grievance put in at page 82 that is a very short letter and it says this: “this is sent to the Second Respondent, Rocket PAYE I am writing to raise a formal grievance, I am writing this letter because of you refuse to pay my holiday pay, please treat this letter as a formal grievance for the refuse to pay me my full entitlement to holiday pay”.[29]And then he says, “I will be grateful if you can let me know how we can talk about my grievance”.[30]Alex Hough of Rocket (R2) and Darren Burrows of City Site (R1) met the Claimant near his place of work. They say that they tried to explain the legal situation to him but that the Claimant would not accept it and stormed off. Without prejudice communication[31]Each side has tried to start telling me about some without prejudice communications, i.e. offers to settle, in support of their own case.[32]I have explained that settlement is normal in these cases but the detail of settlements is not something that I will consider. Claim[33]There was an ACAS conciliation period between the 10 and 23 August. 4 of 15[34]The claim was put in on 24 August and the Claimant says that the end of the period he is claiming is up to 22 September 2023. Termination of employment[35]In the bundle of documents at page 118 there is a P45 document that shows a leaving date of 15 October 2023.[36]There was a preliminary hearing in front of Employment Judge Davidson on 15 July 2024.[37]I have been following a list of issues that was drawn up on 10 December 2025 by Employment Judge Goodman and that has been the structure for my decision. Contractual terms[38]The “contract for services” is a six page document that was not in the page numbered part of the bundle but was provided as a separate loose document. It is a contract between the Second Respondent Rocket PAYE Ltd and the Claimant. It is dated 4 April 2022 although I think that must be a typographic error and it probably should have been 2023. There is a typed signature from Alex Hough. There is no signature from the Claimant.[39]The Claimant has seen this document in the hearing and did not suggest he was not familiar with it. On balance of probabilities I find that he was likely provided with this documentation at the outset. There is no signature from him on it. I never mind that he has limited English and has used a Ukrainian interpreter for this hearing.[40]The following terms are relevant: 1. Rocket Pay tenders for and is appointed by its clients to provide services (“the Contractor Services”) … 4. under these terms you have the right to use substitutes, your own employees or hired assistance (“staff”) to provide the services. … 8. you and your staff will comply with any relevant help and safety procedures, site security and safety measures and site timescales”. 9. Rocket Paye will notify You of the site or premises where the Services will be provided, and You will provide the Services at the location specified by Rocket Paye. 10. The parties acknowledged that it may be necessary for health and safety or security reasons for you or your staff to be identifiable whether evidenced by security passes or on parts of the clothing, 5 of 15 however you or your staff will not represent yourselves as an employee or worker of Rocket PAYE or Rocket PAYEs clients at any time. I should say that although this contract refers to your staff the Claimant was only ever working as a labourer himself and did not have staff. … 13. Rocket PAYE will not supervise direct or control the manner in which you provide the services. You will have discretion as to the methods used to provide the services. 14. You will be responsible for the provision of services under this contract (whether provided by you or your staff). … 18. Under this contract you are responsible for the services and unless otherwise agreed you are responsible for ensuring that the relevant insurance policies including but not limited to public liability insurance are in place to cover the provision of services. It then goes on, such insurances are arranged by Rocket PAYE you will either agree to pay Rocket PAYE the appropriate premiums on the basis to be agreed verbally or the costs will be reflected in the price or rate agreed with you. … 27. You are responsible for how You engage in any Staff and You are responsible for any tax and National Insurance contributions due on any payments to Your Staff. For the avoidance of doubt the deduction of tax and National Insurance by Rocket Paye from payments made to You in no way creates or implies an obligation on Rocket Paye to administer or collect the tax and National Insurance Contributions of Your Staff. … 32 Subject to clause 33, for the duration of this Contract You agree to accept work when offered by Rocket Paye and to provide Services (You may utilise Staff to do so) in accordance with the terms of this Contract when required to do so by Rocket Paye to do so. 33. If You are unable or unwilling to accept work or provide Services Staff, You must notify Rocket Paye as soon as is reasonably practicable. In such circumstances this Contract will remain in force, and You will continue to be bound by the remaining terms and conditions, in addition to which You agree to keep Rocket Paye informed on an ongoing basis as to Your availability. Bills, fees and payment 34. You do not have to submit written formal tenders for services 6 of 15 37. Rocket Paye operates a self-billing invoice system and will provide You with a statement at a frequency agreed between You and Rocket Paye from time to time. This statement shall constitute a self-billed invoice for the Services. You do not have to raise a separate invoice for the Services. … Status of this engagement[41]Under this Contract you will not be an employee or worker of Rocket Paye for general statutory employment rights purposes.[42]Tax and National Insurance rules applied by HM Revenue & Customs are not the same as for general statutory employment rights purposes. Under this Contract payments to You for the Services will constitute employment income, but for tax and National Insurance purposes only. …[45]Otherwise than as explicitly specified under this Contract You are a self-employed operative. You have no contractual entitlement to sick pay, nor to any other payment during periods when Services are not provided including whether Services are counselled by Rocket Paye or by Rocket Paye’s client.[46]You do not have any right to paid holiday under this Contract.[47]Except as mentioned in clauses 42 and 44 for the express purpose of ITEPA, the parties agree that the relationship between them is not one of employer and employee and that You are not engaged as a worker by Rocket Paye. Substitute41. I accept the Claimant’s evidence that he was not aware that he had a right to use a substitute and that this was not something that ever arose in practice. Employees/sub-contractors42. Although the contract contains references to the Claimant’s “Staff”, there is no evidence that the Claimant had either employees or subcontractors working for him. The reality was that he was a labourer and was receiving instruction on site from others. 7 of 15 Law Worker (holiday pay claim)43. The claim for holiday pay is brought under the Employment Rights Act 1996 (“ERA”). In order to bring such a claim the Claimant must be a worker.44. Section 230(3)(b) provides: (3) In this Act “worker” … means an individual who has entered into or works under (or, where the employment has ceased, worked under)— … (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 individual45. In many of the authorities dealing with this topic this type of work is described as a “limb (b) worker”. In this decision for simplicity I use the term “worker” to mean “limb (b) worker)” i.e. a worker falling within section 230(3)(b).46. The test for a worker it has been confirmed in the case law is a multifactorial test. There are certain essential elements. First the individual must be under an obligation personally to do the work. Whether the individual can substitute another and if so this is in some way restricted is relevant. Mutuality of obligation is another consideration. Third the person for whom the work is done must not be a client or customer of a profession or business being run by the individual. “Employee” under Equality Act 2010 47. The claim for direct race discrimination is brought under the Equality Act 2010 (“EqA”). Section 83(2)(a) of the EqA states: “Employment” means employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. In practical terms this is a similar definition to “worker” under the ERA above. Distinction between self-employment and worker status
Law
[48]Whether or not someone is self-employed does not in itself determine whether they are worker. Lady Hale SCJ said the following giving the leading judgment in the case of Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32 at paragraph 24:24. …. Our law draws a clear distinction between those who are so employed and those who are self-employed but enter into contracts to perform work or services for others. 8 of 1525. Second, within the latter class, the law now draws a distinction between two different kinds of self-employed people. One kind are people who carry on a profession or a business undertaking on their own account and enter into contracts with clients or customers to provide work or services for them. The arbitrators in Hashwani v Jivraj (London Court of International Arbitration intervening) [2011] UKSC 40, [2011] 1 WLR 1872 were people of that kind. The other kind are self-employed people who provide their services as part of a profession or business undertaking carried on by some-one else. The general medical practitioner in Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005; [2013] ICR 415, who also provided his services as a hair restoration surgeon to a company offering hair restoration services to the public, was a person of that kind and thus a “worker” within the meaning of section 230(3)(b) of the 1996 Act. …[49]This approach was recently summarised by the Court of appeal in Stuart Delivery Ltd v Augustine, [2021] EWCA Civ 1514, [2022] ICR 511 by Lewis LJ, who held that section 230(3): “36 … reflects a distinction between(1) persons employed under a contract of employment,(2) persons who are self-employed, carrying on a profession or a business on their own account and who enter into contracts and provide work or services to clients and(3) persons who are self-employed and provide services as part of a profession or business carried on by others” Significance of written contract[50]In the context of employment contracts the Supreme Court in Autoclenz Ltd v Belcher and ors [2011] ICR 1157, SC, endorsed a line of cases which stressed that the circumstances under which employment contracts are agreed are often very different from those under which commercial contracts are agreed, with employers largely able to dictate the terms and held that there was less restricted approach to the circumstances in which a court might look behind the wording of a written contract. Relative bargaining power should be taken account of in deciding whether written contract reflects the truth of the agreement.[51]It is not necessary before a court will look behind the contractual documentation that there is a sham or an intention by the parties to deceive others (Protectacoat Firthglow Ltd v Szilagyi [2009] ICR 835, CA). In that decision (cited in Autoclenz above) Smith LJ said that a tribunal faced with a ‘sham’ allegation must consider whether or not the words of the written contract represent the true intentions or expectations of the parties (and therefore their implied agreement and contractual obligations) not only at the inception of the contract but at any later stage where the evidence shows that the parties have expressly or impliedly varied the agreement between them. Lord Justice Aikens warned that, when seeking out the 9 of 15 ‘true intentions’ of the parties, tribunals should not concentrate too much on the ‘private’ intentions of the parties. Ultimately, what matters is what was actually agreed at the time the contract was concluded[52]In Uber BV and ors v Aslam and ors [2021] ICR 657, SC, the Supreme Court held that not only is the written agreement not decisive of the parties’ relationship, it may not be even the starting point for determining employment status: “it would be inconsistent with the purpose of this legislation to treat the terms of a written contract as the starting point in determining whether an individual falls within the definition of a "worker". To do so would reinstate the mischief which the legislation was enacted to prevent. It is the very fact that an employer is often in a position to dictate such contract terms and that the individual performing the work has little or no ability to influence those terms that gives rise to the need for statutory protection in the first place. The efficacy of such protection would be seriously undermined if the putative employer could by the way in which the relationship is characterised in the written contract determine, even prima facie, whether or not the other party is to be classified as a worker.” (emphasis added) Personal service & substitution[53]The leading authority on personal service and the significance of substitution is the decision of the Supreme Court in Pimlico Plumbers v Smith [2018] UKSC 29; 2018 ICR 1551. In that case the employment judge found that there was not an unfettered right to substitute at will. There was no such right given to Mr Smith by the contractual documents and no evidential basis for such a practice. In practice engineers with the company swapped jobs around between each other, and also used each other to provide additional help where more than one person was required for a job or to do a job more quickly, and there was evidence that external contractors were sometimes required to assist a job due to the need for further assistance or to conduct specialist work, the fact was that Mr Smith was under an obligation to provide work personally for a minimum number of hours per week or on the days agreed with the company.[54]Lord Wilson, giving judgment in the Supreme Court held: “34. The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smith's contracts with Pimlico was an obligation of personal performance. To the extent that his facility to appoint a substitute was the product of a contractual right, the limitation of it was significant: the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done. The tribunal was entitled to conclude that Mr Smith had established that he was a limb (b) worker – unless the status of 10 of 15 Pimlico by virtue of the contract was that of a client or customer of his.”[55]At the Court of Appeal below in the same litigation (Pimlico [2017] EWCA Civ 51, [2017] IRLR 323) Etherton MR had summed up the case law on substitution clauses in some detail as follows: ''[84] … In the light of the cases and the language and objects of the relevant legislation, I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance. Fifthly, again by way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.'[56]The Supreme Court did not disagree with this approach, and indeed subsequently the EAT has followed it.[57]Ultimately, based on Pimlico, a limited right of substitution does not preclude the conclusion that a person is a worker.[58]By contrast a genuine and absolute right to substitute would suggest that the individual is not a worker (Independent Workers' Union of Great Britain (IWGB) v RooFoods Limited (t/a Deliveroo) [2018] IRLR 84). Submissions[59]Each side has made their position clear through their evidence and questions.[60]The Claimant’s case is that he was a worker under the Employment Rights Act so that he should be paid holiday.[61]His case is that he is also an employee under the Equality Act so that he can bring a claim of discrimination, which has a very similar test.[62]The Respondents’ case is to the contrary. They submit that: 11 of 15 62.1. the Claimant was self-employed as a contractor and that he stated that he wanted this at the outset; 62.2. that his desire to be registered under CIS supports their case that he wanted to be self-employed; 62.3. they say that they only pay PAYE because they are required to, but that does not make the Claimant a worker.[63]They say that under section 44 ITEPA 2003 [045], in particular section 44(1) and (3) this is an agency worker arrangement, which means that the Claimant is to be treated for income tax purposes as holding employment with the agency. That is the Second Respondent Rocket PAYE. They draw a contrast with Keith Penfold, Site Manager… He falls in to the exception (2)(a) not subject to the supervision, direction or control of any person.[64]They made the point that status for tax purposes is not identical to that for rights as a worker. Analysis of factors in relation to worker status[65]The first legal question I have had to decide is whether the Claimant was a worker or self-employed. Contract[66]It is clear that there was a contract governing the relationship between the Second Respondent and the Claimant. On the face of it the contract supports the Respondents’ position that this was a self-employed arrangement.[67]As to the terms of this contract, following Autoclenz and Uber, the statement that the Claimant was not a worker of the Respondent is not a definitive statement of the legal position. The exercise that I’m carrying out is one of statutory rather than contractual interpretation.[68]The reality is, I find, that the Claimant had little bargaining power at the time of entering into the contract.[69]The contract amounted to standard terms which were offered on a “take it or leave it” basis. The fact that that the contract refers to Claimant’s “staff” when this did not appear to be something that any party was contemplating in reality supports that conclusion. Similarly the reference to the Claimant having the right to provide a substitute does not reflect the practical reality. Payments & payslips[70]Payslips were provided which was automatically generated based on weekly data provided on the hours work. There was no submission of an invoice. 12 of 15 Equipment[71]The Claimant did attend site with some of his own PPE i.e. protective equipment such as safety boots and agrees that he was told to do this. He did attend with PPE but he also says that he was provided with PPE when needed, so for example when his boots broke and he was provided on site, previous to that he been offered boots and choose to wear his own. He also said that he was provided on site with a high viz vest and eye protection.[72]There was a mixed picture on his own obligation and practical reality that the contractor would provide him with PPE on site. Direction/Supervision/Control[73]I find that the Claimant was provided with supervision and direction at work from the main contractor. Who that was varied from site to site.[74]Mr Hough explained that the Claimant was not paid under the construction industry scheme that is CIS because the Claimant was under the supervision, direction or control of others.[75]A distinction is made by contrast with the individual named on page 56 Keith Penfold, a site manager who was paid under CIS because of a degree of control that he had on site, such that he was treated as a sub-contractor.[76]The Claimant was subject to the control of the “end user”, the main contractor. He could not chose which hours and when to work, he was working as an integral part of a team of construction workers on site, he was subject to the supervision direction and control of the end user. Mutuality of obligation[77]When the Claimant was working for a particular contractor there was an expectation that he would attend and that there would be a job for him there. There were standard hours when he was working on those contracts and the payslips clearly show there are long periods of consistent pay and consistent hours for week after week which is evidence in support of this. Right to substitute/Personal service[78]Although there is a contractual right to substitute that was subject to checks that Mr Burrows explained that someone would first, have the right to work in the UK; second, that they understood the contractual relationship; and third, that they had the ability to carry out tasks required.[79]This was a significantly fettered right to substitute. The Claimant could not just send anyone he wanted to do his work on a particular day, they would have to go through the process of being approved to work.[80]There is no evidence that this happened in practice and I accepted the Claimant’s evidence that he was unaware of an option to substitute. 13 of 15 Financial risk[81]There are two different factors which point in two different directions in relation to financial risk.[82]If the end user did not pay the financial risk would be the Second Respondent’s given that the Claimant could sue the Second Respondent if he did not receive payment and that does I find point towards worker status.[83]On the other hand there is a different risk which is if there was a period without work then the risk was on the Claimant because he would not be paid and in fact he did work for another agency for a few days. That points in the opposite direction i.e. towards self-employment. Tax treatment and CIS[84]The fact that the PAYE is paid it does not automatically mean that the Claimant is a worker and the fact that he is not paid under CIS does not automatically mean that he is a worker that is just part of the overall picture. The Respondents have emphasised that the Claimant actually wanted to be registered under CIS, they say that that supports their case that he was self employed as the contract said. I do acknowledge that point.[85]On the other hand the Respondents in my view correctly did not register him under the CIS. Unlike a site manager he was subject to supervision direction and control.[86]Finally, the provision of P60s and the P45s does to some extent point in the direction of worker status. Conclusion on worker status[87]In summary the matters pointing towards self employed status are the terms of the contract, that there was a period without work, the Claimant was not paid when not working, he worked for another agency and he attended with some of his own protective equipment.[88]On the other side pointing to worker status there were standard hours for long periods of time, i.e. there was an expectation he would attend for particular hours on a particular site, he was clearly subject to supervision and control and worked as part of a construction team. There is the PAYE, although I accept that that is in part because of regulation in the building industry. I find that the right of substitution was limited in practice.[89]So, this is a difficult case with points on either side but ultimately I am persuaded that contract did not reflect the reality of the situation and that the Claimant was a worker within the meaning of section 230(3)(b) ERA.[90]I also find that the Claimant was an employee under the Equality Act. 14 of 15 Holiday pay/quantum[91]Turning to holiday pay it is agreed between the Respondents that this would be a claim against the Second Respondent Rocket PAYE. The Claimant was not paid holiday pay and based on my finding that he was a worker I find that he is entitled to be paid holiday pay. The calculation quantum holiday pay is contained within the judgment and I do not need to repeat that figure here. Race discrimination[92]The basis for the claim of direct race discrimination pursuant to section 13 EqA is the Claimant’s Ukrainian nationality. He contends that the Respondent decided that he was not eligible to be paid under the construction industry “CIS” scheme.[93]What the Claimant says in his witness statement is “I know that there were cases that Rocket Paye Limited did pay some workers on the same site through CIS which in my case might be considered as discriminatory.[94]The initial burden was on the Claimant to establish facts from which a Tribunal could reasonably conclude that an act of discrimination had occurred.[95]The Claimant said that he remembered speaking to someone whom he believed from was from the UK who was a labourer and paid through CIS. He cannot remember their name and gave no other description of that individual.[96]The witnesses who attended for each of the Respondents deny being aware of anyone in similar circumstances to the Claimant who was paid through the CIS system. They were adamant that a labourer would not be paid through CIS.[97]The documentary evidence submitted by the Respondents support what they say about the distinction between those who are and who are not subject to supervision, direction or control. I accepted Mr Hough’s evidence that the reason why the Claimant was not paid under CIS was that (by contrast with Mr Penfold, a site manager) he was subject to “supervision direction or control”.[98]I find that this was the reason for the Claimant’s treatment not his Ukrainian nationality.[99]The claim of race discrimination based on nationality is not well-founded and is dismissed.