Mr S Ossai v Integrate Engineering Resources Ltd and Tissot Industry (UK) Ltd: 2303935/2024

EMPLOYMENT TRIBUNALS

Case No 2303935/2024

Between

Mr S OssaiClaimant

1. Integrate Engineering Resources Ltd 2. Tissot Industry (UK) LtdRespondent

Before

Employment Judge Rice-Birchall

Mr Gray-Jones (instructed by counsel) for claimant

Date 7 January 2026

JUDGMENT

The claimant was not an employee or worker (or contract worker) of R1 and/or R2 at the relevant time. The claim is therefore dismissed because the Tribunal does not have jurisdiction to determine it.

REASONS

[1]This case was listed for a two day preliminary hearing to determine the employment status of the claimant and whether or not the Tribunal had jurisdiction to hear his claims of direct race discrimination; race harassment; victimisation; whistleblowing detriment, and unlawful deduction from wages against R1 and/or R2.

[2]The claimant was assigned by R1, an employment business, through a limited company, Epinots Group Ltd (Epinots), to work for R2 at an engineering project being carried out by R2 on the Isle of Grain. His role was that of Health and Safety Advisor, and he was engaged by R2 from 27 November 2023 until 18 January 2024.

[3]Early conciliation in respect of R1 and R2 started on 24 April 2024 and ended on 29 April 2024. The claim form was presented on 2 May 2024.

[4]The claimant admits that he was not an employee of R1 or R2 within the meaning of s230 of the ERA.

[5]The claimant’s position was that there was no agreement between R1 and Epinots and that he was a worker (or contract worker) under all heads (see issues below). The claimant submits that he supplied the details of Epinots for payment purposes only.

Issues

[6]The issues to be determined at that hearing will be as follows:a. Was the claimant an employee of R1 and/or R2s under s.83 Equality Act 2010 (EqA) (employment for the purposes of the EqA)?

b. Alternatively, was the claimant a contract worker of R1 and/or R2 under s.41 EqA 2010?

c. Was the claimant a worker of R1 and/or R2 under s.230(3) Employment Rights Act 1996 (ERA)?

d. Was the claimant a worker of R1 and/or R2 under the wider definition in s.43K ERA 1996?

[7]The Record of Preliminary Hearing also stated that the Employment Judge would also consider whether any deposit orders should be made and whether any further case management was needed.

Evidence

[8]The Tribunal had the benefit of a Joint Bundle and some additional pages from R2. The claimant produced some additional documents during the first morning of the hearing which included a template contract from R1, a what’s app conversation and a transcript of a further what’s app conversation. As the respondents did not object to these documents being referred to in the hearing, these were admitted as evidence.

[9]There were witness statements from the claimant; Nathan Boyce, R1; and Thibault Gasse, R2. The claimant and Mr Boyce also gave oral evidence, but Mr Gasse was unable to attend. It was agreed that Mr Gasse’s evidence was not, in any event, of much assistance to the Tribunal, and it was not taken into account.

Facts

[10]Through an arrangement between R2 and R1, an employment business, the claimant was supplied to work for R2 pursuant to an agreement between R1 and Epinots, a limited company. It is the claimant’s case that that agreement was not a true reflection of the contractual arrangement between the parties, and that, in fact, he was a worker and/or contract worker of R1 and/or R2 so as to entitle him to bring his claims.

[11]The claimant worked on an engineering project being caried out by R2 on the Isle of Grain, as a health and safety advisor. The claimant commenced work on 27 November 2023. At all material times he performed the work for R2 personally. There was no written contract between the claimant and R2. Epinots

[12]The claimant’s Particulars of Claim state: “The Claimant owned a limited company, Epinots Group Ltd, which supplied the Claimant to work for R2 pursuant to an agreement between R1 and Epinots Group Ltd. Payment was made by R1 to Epinots Limited on the basis of invoices.”

[13]In accordance with Companies House records, Epinots was set up in August 2018 and “undertakes Management consultancy activities (other than financial management)”.

[14]The claimant has been significantly involved in that company since its inception. He was a person of significant control (ie 75% of shares) from August 2018 until August 2020; November 2020 until August 2022; and from February 2024. He was not a person of significant control at the time the contract was entered into with R1 in November 2023.

[15]Others have been shareholders and directors of that company including Mr Uzor, Mr Zeigler and Mrs Hard. The claimant is neither a sole shareholder or sole director. Sometimes, there was overlap. For example, the claimant was a director from August 2018 until October 2019 and overlapped with Mr Zeigler for about a year. Notably, the claimant was not a director at the time the contract was entered into with R1, but became a director again during the course of his engagement by R2. Agreement between Epinots and R1

[16]On 20 November 2023, Ms Smith of R1 contacted the claimant by email following a call. The email address the claimant had given was his Epinots email address (s.ossai@epinots.com).

[17]The claimant replied from his Epinots email address.

[18]At some time during the recruitment process, the claimant supplied his CV, which, under the heading “Work history”, described him as an “HSE Principal Consultant – Epinots Group London 201 – Present.” The Tribunal accepts Mr Boyce’s evidence that if the CV had Epinots on it, it was “ok to assume it was Epinots” with whom R1 was contracting.

[19]On 30 November 2023, on behalf of Epinots, the claimant signed an Agreement for the Engagement and Provision of Services with R1 to provide Health and Safety advisory services to R2 “Monday to Sunday (Nights)” for a Standard Rate of £375 per day. Payment was made to Epinots under that Agreement with Epinots bank details being provided.

[20]That Agreement contained the following terms:a. Throughout its duration, both Epinots and the claimant could continue to supply services to others (clause 2.4);

b. Epinots could at any time substitute the claimant for another representative, subject to certain caveats (clause 2.6);

c. Epinots warranted that the claimant would follow R2’s rules and procedures relevant to independent contractors and would act in a professional manner at all times (clause 4.6);

d. Epinots was responsible for any eligible pension enrolment and the payment of any tax and National Insurance arising in respect of the claimant (clauses 4.11 and 4.12);

e. Epinots was responsible for providing and insuring any necessary equipment required for the performance of the services (clause 5.1.5);

f. Epinots had reasonable autonomy as to the method and performance of the services (clause 5.5);

g. Nothing in the Agreement should be construed as rendering any representative of Epinots (i.e. the claimant) an employee or worker of either R1 or R2 and the claimant was not to hold himself out as such (clause 5.8);

h. Epinots should invoice R1 for the amount due for the services provided in accordance with the rate set out in the Assignment Schedule (clause 6.1);

i. Epinots was not entitled to claim any expenses from R1 (clause 6.3);

j. Epinots acknowledged that it supplied the services to R1 as an independent contractor (clause 12.5) and the Agreement/Assignment was not intended to constitute or give rise to a contract of service or an employment contract (clause 12.1);

k. There was no entitlement to holiday or sickness pay (clause 12.6);

l. Epinots remained liable for any negligence in the provision of the services (clause 14.1); and

m. Epinots was required to maintain Public Liability and Professional Indemnity insurance (clause 14.3).

[21]The Agreement included an Assignment Schedule which was completed by the claimant. It stated that the contractor name was “Limited company” and gave Epinots’ details. The claimant said in his oral evidence that this was for payment purposes only, but nowhere was that made clear or even alluded to (see also below). The claimant signed the agreement as a “Representative of Contractor” and again gave his Epinots email address.

[22]Indeed, on 28 November 2023, before signing the above terms, the claimant wrote to Ms Smith at R1 to negotiate those terms on behalf of Epinots. The email was signed off as “Chief Operating Officer” with Epinots details at the end. The claimant had written: “Other than the above, please be assured that Epinots and its representatives will work very hard to ensure that your client gets sound professional health and safety services.”

[23]Inter alia, the claimant stated:a. “The client wants Epinots or its representative to start 430pm…..”;

b. “Clause 14.2 of the contract states that as a contractor, Epinots or its representative has to indemnify Integrate in case Integrate loses its agency fees from the client due to Epinots or Epinots' representative being asked to stop work. This is not a standard contractual practice. Such a potential loss in fees is a standard business risk that comes with Agency arrangements. Epinots cannot indemnify Integrate for such losses. Of course, Epinots will always act in good faith to ensure that the project is safely delivered. It is in both Epinots' and lntegrate's interests that a good relationship is kept with the client and that the client gets value from the professional services it has sought. Please, remove Clause 14.2 in the contract or correct by way of an email to us.”; and

c. “Clause 8.7 states that Integrate will not provide further explanation or a reason to Epinots or its representative where contract is terminated. This is not a standard practice. Please change this….Also, decisions for termination can relate to an Epinots' representative in which case it becomes personal data under UK Data Act /GDPR 2018.”

[24]In that communication, the claimant refers to “us” and “our” (referring to Epinots) rather than “me” or “I”. He was clearly communicating with R1 on behalf of Epinots and not on his own behalf.

[25]Communications from the claimant before, during and after the period engagement with R1to R1 were from an Epinots email address and almost all were signed off as “Chief Operating Officer” with Epinots details at the end. The Tribunal refers to the letter referred to in the paragraphs above and an email to R1 dated 19 December 2023 in which the claimant sent in an invoice to R1 for payment (see below).

[26]Significantly, at the time of entering into the contract with R1, the claimant was not the owner of Epinots, but Mr Uzor was. Mr Uzor was a director from 20 August 2022 until February 2024. Similarly, the claimant was not a director when he entered into the contract with R1. From December 2023, he was a director alongside Mr Uzor. He says in his witness statement that “the director of Epinots had agreed for me to be made a director.” The claimant did not howvwer give any evidence as to the arrangement in place with Mr Uzor or Epinots generally.

[27]R1 entered an agreement with R2 for the supply of services provided by the claimant which involved a higher rate than that paid to Epinots by R1. Therefore R2 paid R1 for the services provided.

[28]On 19 December 2023 the claimant sent an invoice from Epinots Group Limited to R1 for the services provided (with amounts varying from day to day) with VAT added and Epinots bank details at the end.

[29]There followed a dispute with R1 about the terms of the Agreement including the agreed rate and whether expenses were due and the Agreement was ended on 18 January 2024.

[30]In a WhatsApp message dated 19 January 2024 to Nathan Boyce of R1, the claimant referred to the fact that he was commencing a new role the following week but said that if R1 needed a consultant “…we can always supply you one to support your clients”. Again, the claimant clearly refers to himself as part of Epinots and is offering to supply a consultant for any work that might be available. Claimant’s position

[31]For the avoidance of doubt, it is the claimant’s position that there was no agreement between R1 and Epinots. Rather, he was told that Epinots was needed simply for payment purposes, and that he must be a director, but that at all material times there was a contractual arrangement between the claimant personally and R1. However, other than the claimant’s oral evidence there was no supporting evidence for that submission, despite the late disclosure made by the claimant on which he sought to rely in this regard.

[32]The claimant alleged that Ms Smith told him that he had to go back to being a director; to forget the terms in the contract; and that the contract had nothing to do with Epinots, and that that was followed up by a What’s App message. However, the claimant was taken to the email he was allegedly referring to and to the What’s App messages which said nothing of the sort.

[33]The claimant then alleged that it was Mr Boyce who called him to follow up and said he had to be a director, and that Epinots was simply there in order to be able to pay the claimant. Again, there was no evidence, other than the claimant’s oral evidence, of this. In this regard, the claimant’s evidence is not accepted as it is so inconsistent with the claimant’s own emails and communications with R1 in terms of negotiating the terms of the Agreement and otherwise, when he acts consistently as a representative of Epinots.

[34]The Tribunal does not find the claimant’s arguments in this regard to be credible. The argument is totally inconsistent with the dialogue and language in the emails referred to above in which the claimant clearly holds himself out in his discussion and negotiations with R1 as a representative of Epinots. There is no evidence of R1 at any time telling the claimant that the contract with Epinots was in any way a sham, as alleged. Furthermore, there is no evidence that the claimant at any stage indicted that he would rather be directly engaged by R1, rather than enter a contract on behalf of Epinots. Law Section 230 ERA

Law

[35]The definition of “worker” in set out in s.230 ERA which provides, Section 230 Employee, workers etc.(1) In this Act, “employees” means an individual who has entered into or works under (or where employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or a apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this act ‘worker’ (except in the phrases “shop worker” and “betting worker”) means 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 of customer of any profession or business or undertaking carried on by the individual; and any reference to a worker’s contract should be construed accordingly.

[36]Accordingly, the statute identifies three types of people: those employed under a contract of employment; those self-employed people who are in business on their own account and undertake work for their clients or customers; and an intermediate class of workers who are self-employed but who provide their services as part of a profession or business undertaking carried out by someone else. See Uber BV and Others v Aslam and Others

[2021] ICR 657

per Lord Leggat at [38]. S.83 EqA

[37]S.83 EqA provides, 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;”

[38]A contract personally to do work under s.83(2) EqA is essentially the same as a worker contract under s.230(2)(b) ERA: see Clyde and Co LLP and Another v Bates Van Winkelhof

[2014] ICR 730

and Pimlico Plumbers Ltd v Smith

[2018] ICR 1511

at [13] - [15]. Accordingly, reliance is placed on the analysis regarding worker status above when considering whether the claimant meets this definition.

[39]The ‘customer or client’ exemption applies just as much to “employment” under s83(2)(a) even though the statutory language is silent in this respect, as confirmed in the recent EAT decision in Alemi v Mitchell and anor

[2021] IRLR 262

. The ET in Alemi erred in law when it decided that a locum doctor working for a medical practice was an employee in the extended sense for the purposes of s83(2)(a) EqA because he had entered into a contract under which he agreed to do work personally. The EAT held that authorities clearly showed that there was no significant difference between the definition of an ‘employee’ under s83(2)(a) EqA and a limb (b) worker for the purposes of s230(3) ERA, both of which excluded those who were genuinely in business on their own account and undertook work for their clients or customers Correct approach to employment/worker status

[40]The correct approach to employment/worker status, and in particular the relevance of any contractual documentation to that issue, is set out in the decisions of the Supreme Court in Autoclenz v Belcher

[2021] ICR 1157

and Uber v Aslam.

[41]As Lord Leggatt JSC summarised in Uber (at paragraph 41 of his decision), for an individual to hold ‘worker’ status (in circumstances where they were not working under a contract of employment – s230(3)(a)), it is evident from the definition in s230(3)(b) above that the following factors are necessary: 1) there must be a contract, whether express or implied and if express whether written or oral whereby an individual undertakes to perform work or services for the other party; 2) that contract must provide for the individual to carry out personal services; and 3) those services must be for the benefit of another party to the contract who must not be a client or customer of the individual’s profession or business undertaking.

[42]In the recent decision of Catt v English Table Tennis Association Ltd and ors

[2022] IRLR 1022

, EAT, Eady J emphasised that the first issue an employment tribunal needs to resolve when asked to determine whether an individual has ‘worker’ status is whether there was a contract between the putative worker and the putative employer at all. Accordingly, the claimant cannot claim ‘worker’ status — whether under limb (a) or (b) of the statutory definition — unless he first shows that there is an express or implied contract with the ‘employer’.

[43]In accordance with the Uber decision the role of the Tribunal is to determine as a matter of statutory interpretation whether the claimant fell within the definition of a worker (irrespective of what may have been agreed by way of the contract between the parties). In deciding whether a claimant is a worker as defined under s230, the fact that he or she signed a document will be relevant, but not conclusive, evidence of the true position where the terms are standard and non-negotiable and where the parties are in an unequal bargaining position. It upheld the Court of Appeal’s decision that tribunals should take a ‘realistic and worldly-wise’, ‘sensible and robust’ approach to the determination of worker status.

[44]Notwithstanding the significance of these authorities, cases of this kind are extremely fact-sensitive and the extent to which their principles are engaged depend entirely upon the particular factual matrix under consideration. An error of law could easily arise if these cases are slavishly applied without proper analysis of whether the principles apply to the particular facts in any case where worker status is in issue.

[45]Further, notwithstanding its absence in the statutory definition, the weight of authority also suggests that some degree of mutuality of obligation is also a requirement for limb (b) worker status to arise. Whether this is a freestanding requirement or merely an aspect of one or more of the three elements of the statutory definition listed above is a moot point. The need for a direct contractual relationship

[46]When determining worker status it is a fundamental (indeed, statutory) requirement that the individual worker has entered into a direct contract, whether express or implied, to provide personal service to the putative employer. The existence of a separate company through which the individual provides his or her services will usually be fatal to any employment-based claim unless such an arrangement does not reflect the parties’ true relationship.

[47]This point was emphasised by the EAT in the recent decision of Plastic Omnium Automotive Ltd v Horton

[2023] EAT 85

. In summary, the appellant, POA Ltd, entered into a written contract with consecutive personal service companies belonging to Mr Horton specifically for the provision of his services to POA Ltd. There was no provision for a substitute. Accordingly, Mr Horton provided services to POA Ltd for over eight years, during which time he was fully integrated into the business. When determining Mr Horton’s status, the tribunal found that the written agreement reflected the true agreement between the parties and determined that he was not an employee but that he was a worker. It held that POA Ltd was not a client or customer of the personal service companies and concluded that Mr Horton was ‘clearly subordinate and dependent’ to POA Ltd.

[48]On appeal, referring to Sejpal v Rodericks Dental Ltd

[2022] ICR 1339

, EAT, and Catt v English Table Tennis Association Ltd and ors

[2022] IRLR 1022

, EAT, it emphasised that the starting point when considering worker status is to determine whether there was a contract between the worker and the putative employer. The EAT held that the real issue was that the contract was not between Mr Horton and the putative employer but between his personal service companies (which had separate legal identities) and POA Ltd. The ‘client or customer’ question was one which fell to be determined after the contractual issue was addressed. As the tribunal had found that the contract was between Mr Horton’s personal service companies and POA Ltd, and that this reflected the parties’ true agreement, there was only one legally correct outcome. The EAT allowed the appeal and substituted a finding that Mr Horton was not a worker. Dual status and tripartite arrangements

[49]It is a well-established principle of law that one employee cannot simultaneously have two employers in respect of the same employment (Patel v Specsavers Optical Group Ltd

UKEAT/0286/2018

and Cairns v Visteon UK Ltd

[2007] IRLR 175

). The same principle translates to the engagement in which the putative worker is providing such work or services. In essence there can only be one other corresponding party to the contract through which the work is performed under s230(3)(a) or (b) (see United Taxis Ltd v Comolly and anor and another case

[2023] EAT 93

). The decisions in Uber and Pimlico Plumbers do not diminish this principle in any way. On the contrary, the fact that an individual cannot be both an employee/worker of one party/legal entity and a employee/worker of a different party/legal entity in respect of the same work runs consistent with, and would seem to compliment, the decisions in Autoclenz, Uber and Pimlico Plumbers. Having proper regard to those authorities, there is no statutory basis upon which it is necessary to imply a contract between an individual and a third party in circumstances where this would simply convey upon the individual the same (or fewer) statutory rights to which he or she was/is already entitled in respect of the same work carried out under a contract with another party in which the individual is an employee or worker. Determining the true agreement between the parties?

[50]In Autoclenz v Belcher it is stated at [35]: “The true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part.”

[51]In Uber v Aslam Lord Leggat JSC stated at [85], “The Autoclenz case shows that, in determining whether an individual is an employee or other worker for the purposes of the legislation, the approach endorsed by the Carmichael case is appropriate even where there is a formal written agreement (and even if the agreement contains a clause stating that the document is intended to record the entire agreement of the parties). This does not mean that the terms of any written agreement should be ignored. The conduct of the parties and other evidence may show that the written terms were in fact and agreed to be a record, possibly an exclusive record, of the parties’ rights and obligations towards each other. But there is no legal presumption that a contractual document contains the whole of the parties’ agreement and no absolute rule that terms set out in a contractual document represent the parties’ true agreement just because an individual has signed it. Furthermore, as discussed, any terms which purport to classify the parties’ legal relationship or to exclude or limit statutory protections by preventing the contract from being interpreted as a contract of employment or other worker’s contract are of no effect and must be disregarded.”

[52]The determination of the actual agreement between the parties must be undertaken with the primary focus on whether the individual asserting employee or worker status met the tests set out in the relevant statutory provisions rather than whether they qualified for that status under the terms of the contract: Uber BV v Aslam at [76].

[53]Similarly, in accordance with James v Greenwich LBC

[2008] ICR 545

, CA, a tripartite agency worker case, a tribunal will only be entitled to imply a contract between an agency worker and an end-user where it is necessary to do so to give business reality to the situation. No such necessity arises where agency arrangements are genuine and accurately represent the relationship between the parties. Is the person in business on their own account/ client exception?

[54]The third and final factor within the limb (b) statutory definition makes it clear that if a person renders services or performs work on the basis that the person to or for whom he or she does so is a customer or client of his or her business or profession, he or she is not a ‘worker’. Accordingly, if the individual is truly in business on their own account, they will not satisfy the definition.

[55]At paragraph 71 of Uber Lord Leggatt JSC referred with approval to the passage in Byrne Bros (Formwork) Ltd v Baird

[2002] ICR 667

, para 17(4) by Mr Recorder Underhill QC (as he then was) when considering the purpose of the relevant statutory provisions: “the policy behind the inclusion of limb (b) … can only have been to extend the benefits of protection to workers who are in the same need of that type of protection as employees stricto sensu—workers, that is, who are viewed as liable, whatever their formal employment status, to be required to work excessive hours (or, in the cases of Part II of the Employment Rights Act 1996 or the National Minimum Wage Act 1998, to suffer unlawful deductions from their earnings or to be paid too little). The reason why employees are thought to need such protection is that they are in a subordinate and dependent position visà-vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. [emphasis added] Thus the essence of the intended distinction must be 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 the relevant respects.”

[56]The EAT explained in Baird that drawing this distinction in any particular case will involve all or most of the considerations that are applicable to distinguishing between a contract of employment and a contract for services, but with the boundary extended further in favour of the individual. Relevant factors are: a) the degree of control exercised by the putative ‘employer’; b) the exclusivity of the engagement and its typical duration; c) methods of payment; d) what equipment the ‘worker’ supplied; and e) the level of risk undertaken by the individual. Factors tending to show that an individual is running their own business and that the party for whom the work is performed is a client or customer of that business would be the individual: a) having business accounts prepared and submitted to HMRC; b) being free to work for others; c) being paid at a rate that includes the cost of overheads; and d) not being paid when not working.

[57]The concepts of integration, control and/or subordination may assist in these tasks: Sejpal v Rodericks Dental Ltd

[2022] ICR 1339

at [33].

[58]Langstaff J (as he then was) in Cotswold Developments Construction Ltd v Williams

[2006] IRLR 181

, EAT, referred to an ‘integration test’ that will often be relevant in determining whether a person is a worker or in business dealing with a customer or client. According to this test, in many cases it is possible to determine whether a person is providing services to a customer or client by focusing on whether that individual actively markets his or her services as an independent person to the world in general (and thus has clients or customers) or whether he or she is recruited to work for the principal as an integral part of its organisation. The Court of Appeal in Hospital Medical Group Ltd v Westwood

[2013] ICR 415

, held that there was no ‘single touchstone to unlock the words of the statute in every case’ but accepted that the integration test is a useful determinant. Personal performance of work or services

[59]“Personal service” means that the employee must have agreed to provide his or her own work and skill in exchange for a wage or other remuneration. As such the existence of a valid substitution clause in an agreement may prevent the agreement being a contract of employment.

[60]Determining whether a contract includes an obligation of personal performance is a matter of construction, and is not necessarily dependent on what happens in practice. It does not necessarily follow from the fact that work is done personally that there is an undertaking that it be done personally (see Redrow Homes (Yorkshire) Ltd v Wright

[2004] ICR 1126

, CA).

[61]Equally, as the recent authorities have demonstrated, substitution clauses in themselves are not determinative of whether personal performance is required. Even if such a clause genuinely reflects the terms of the agreement it is still necessary to consider the extent of how the power of delegation may be fettered.

[62]In Pimlico Plumbers v Smith Lord Wilson JSC, with whom the other members of the court agreed, stated at [32], “The sole test is of course the obligation of personal performance; any other so-called sole test would be an inappropriate usurpation of the sole test. But there are cases, of which the present case is one, in which it is helpful to assess the significance of Mr Smith’s right to substitute another Pimlico operative by reference to whether the dominant feature of the contract remained personal performance on his part.”

[63]In Pimlico Plumbers the claimant worked under a contract which described him as a self-employed, independent contractor. There was no express right of substitution in the contractual documentation but plumbers working for Pimlico could swap assignments between themselves. The Supreme Court upheld the tribunal’s finding that this was a limited right of substitution that was not inconsistent with an obligation to perform services personally.

[64]On the other hand, in UK Mail Ltd v Creasey UKEAT 0195/2012 the claimant was a van driver who, under the terms of the agreement, could send a substitute to carry out his duties, provided that person was approved in writing by UK Mail and passed its vetting procedures. Even though the claimant had never appointed a substitute in over ten years and was unaware of his right to do so the EAT overturned a decision that he was a worker. The substitution clause was genuine, substitution was a matter of choice and he did not have to be unable to perform his duties before sending a substitute. There was no fetter on the right to invoke the substitution clause and the fact it was subject to conditions relating to suitability or qualifications was irrelevant (a small number of other drivers had used the substitution clause). The fact that the claimant had not carefully read the contract did not diminish the genuineness of the right.

[65]In Stuart Delivery Ltd v Augustine

[2022] ICR 511

the Court of Appeal emphasised that the judgments of the Court of Appeal and the Supreme Court in Pimlico Plumbers v Smith establish two principles: 1) That an unfettered right of substitution is inconsistent with an obligation of personal service; and 2) A conditional right of substitution may or may not be inconsistent depending on the nature and degree of the fetter. Control

[66]In relation to the question of control, the judgment of Dixon J in Humberstone v Northern Timber Mills

[1949] 79 CLR 389

states, “The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether any actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s orders and directions.”

[67]This approach was approved by the Court of Appeal in Montgomery v Johnson Underwood Ltd

[2001] ICR 819

where Buckley J stated at [19] that what was required was a “sufficient framework of control.”

[68]In Troutbeck SA v White & Todd

[2013] IRLR 286

the EAT held that the question is whether there is to a sufficient degree a contractual right of control over the worker, not whether in practice the worker had day to day control over his work. Control requires that ultimate authority over the purported employee in the performance of their work rests with the employer. The Court of Appeal subsequently approved this approach (White & Todd v Troutbeck SA

[2013] IRLR 949

[69]The fact that a worker has formed a limited company and provided services through that company does not in itself exclude employment status: Catamaran Cruisers Ltd v Williams and Others

[1994] IRLR 386

. Mutuality of obligation

[70]The relevance of mutuality of obligation both in terms of personal service and whether an individual is in business on their own account was considered by the Court of Appeal in the recent case of Windle and anor v Secretary of State for Justice

[2016] ICR 721

, CA, albeit under the similar provision in s83 Equality Act 2010. The claimants were interpreters who worked for a range of organisations, including HMCTS. When determining that they were not employed under ‘a contract personally to do work’, the tribunal took into account the absence of a contractual relationship covering the period between engagements (HMCTS was not obliged to offer work and the claimants were not obliged to accept work offered), relying on Elias LJ’s judgment in Quashie v Stringfellows Restaurant Ltd

[2013] IRLR 99

, CA (dealing with the definition of ‘employment’ rather than ‘worker’ status under the ERA). In Quashie, the fact that a worker only works casually and intermittently for an employer may, depending on the facts, justify an inference that when he or she does work it is to provide services as an independent contractor rather than as an employee. Although the EAT reversed the tribunal’s decision, the Court of Appeal restored it.

[71]Underhill LJ held that the absence of mutuality of obligation outside the period of any work being done may influence, or shed light on, the character of the relationship within it. Although Quashie was relevant to employee status, it was ‘a matter of common sense and common experience that the fact that a person supplying services is only doing so on an assignment-byassignment basis may tend to indicate a degree of independence, or lack of subordination, in the relationship while at work which is incompatible with employee status even in the extended sense’. The relevance of this factor will vary from case to case, but it should not be excluded altogether.

[72]Ultimately, a tribunal is required to approach the matter holistically, taking account of all relevant facts, balancing those against the appropriate principles outlined in the case law above before reaching a conclusion on whether a claimant meets the statutory definition of ‘worker’ under the ERA. Contract Worker under EqA

[73]S.41 EqA 2010 provides, “Contract workers (1) A principal must not discriminate against a contract worker … (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 it mentioned in subsection (5)(b).

[74]In order for a claimant to bring a complaint as a contract worker under s.41 EqA 2010 there has to be a contractual nexus between the contract worker and principal. In order for liability to arise there has to be: a) The supply of work by a principal; b) The carrying out of the work by a person employed by another party; c) The supply of the person carrying out the work to the principal by another party.

[75]Abbey Life Assurance Co Ltd v Tansell

[2000] IRLR 387

. makes clear that a person will not be prevented from being a contract worker by the fact that they are not employed by the person supplying them to the principal. Accordingly, in Tansell a person who was employed by a limited company which then entered a contract under which the person was supplied to a third party to carry out work was a contract worker for the purposes of the EqA. In fact, this interpretation is now reflected in the wording of s.41 (Tansell was a case brought under the Disability Discrimination Act 1995) which does not require the contract worker to be employed by the person supplying them to the principal (s.41(5)(b)).

[76]In accordance with s41(5), it is a requirement that the contract worker is ‘employed’ by one person and supplied to another. Accordingly, there must be a contract between the individual and the intermediary and such a contract must be one of ‘employment’ as defined by s83 EqA.

[77]Whilst there can be more than one intermediary in the chain and the ‘employment’ relationship does not need to be with the intermediary next in line to the client/end user (as determined in MHC Consulting Services Ltd v Tansell and anor

[2000] ICR 789

, CA) the claimant must still be employed by one of the parties and not in business on his own account. There are numerous examples of tribunals finding that individuals operating through a service company in which they have an interest are not employees of that company but are instead using it as a vehicle through which to carry out their own business undertaking on a self-employed basis.

[78]Although a first instance decision and thus not binding authority, one such example is Bijou v DHL Parcel UK Ltd ET Case No.3314725/20. Mr Bijou asserted that he was a contract worker and sought to bring a discrimination claim against DHL as principal. DHL had entered into a contract for the supply of courier services with KREC Ltd, a company wholly owned by Mr Bijou. The ET found that Mr Bijou was not an employee or worker of KREC Ltd even though he was technically registered as an employee of the company. The ET was satisfied that Mr Bijou operated as an entrepreneur negotiating with DHL for a number of routes that he undertook for them as the owner of his business and he could not therefore rely upon the ‘contract worker’ provisions in s41 EqA to pursue a claim of discrimination against DHL. S.43K ERA

[79]Section 43K(1) ERA extends whistleblowing protection to certain individuals who do not meet the worker definition contained in s230(3) ERA because they cannot fulfil the requirement that he or she personally perform the work or services for the putative employer and/or may not have a contract with it. It operates in a similar way to the protection from discrimination afforded to contract workers under s41 EqA (as set out above). It may apply to an individual who is or was introduced or supplied by an agency if the terms of his or her engagement are or were substantially determined not by the individual but by the third party or the client, or both, but the contractor must be an employee or worker of any intermediary.

[80]S.43K ERA provides, “(1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who -(a) works or worked for a person in circumstances in which - (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them.

(b) contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section s.230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)” ...(2) For the purposes of this Part “Employer” includes - (a) in relation to a worker falling within paragraph (a) of subsection (1) the person who substantially determines or determined the terms on which he is or was engaged.

[81]S.230(6) ERA states, “This section has effect subject to sections 43K, s.47B(3) and 49B(10) and for the purposes of Part XIII so far as relating to Part IVA or section 47B “worker”, “worker’s contract” and in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by s.43K.”

[82]The purpose of s.43K is stated by Simler J (P) in McTigue v University Hospital Bristol NHS Trust

[2016] ICR 1155

at [19] as being, “...primarily to protect agency workers provided to an end user in circumstances where the worker could not fulfil the stricter “limb (b)” requirements of section 230(3) by virtue of the absence of a sufficient contractual relationship with the end user.”

[83]In both Croke v Hydro Aluminium Worcester Ltd

[2007] ICR 1303

EAT and Keppel Seghers UK Ltd v Hinds

[2014] ICR 1105

EAT, it was held that claimants operating through a service provision company (SPC) can in certain circumstances fall within s43K(1) and (2) if the SPC is simply a corporate vehicle through which the individual’s services are supplied but notably in both of those cases the claimants were sole directors and shareholders of their SPCs. It is important to note that the protection does not cover the genuinely self-employed or those operating through their own business undertaking. If the consultant falls outside the definition of worker under s230(3)(b) ERA because the other party to the contract is a client or customer of any profession or business undertaking carried on by the consultant, then he or she will also fall outside the extended definition in s43K(1)(b). Section 43K(1)(a) will also not be satisfied because the claimant will not be working for anyone other than himself or his company.

[84]In McTigue the EAT stated at [38] that the correct approach to determining whether an individual is a worker within s.43K(1)(a) is to address the following questions: a) For whom does or did the individual work? b) Is the individual a worker as defined by section 230(3) in relation to a person or persons for whom the individual worked? If so, there is no need to rely on s.43K in relation to that person. However, the fact that the individual is a section 230(3) worker in relation to one person does not prevent the individual from relying on section 43K in relation to another person, the respondent, for whom the individual also works. c) If the individual is not a section 230(3) worker in relation to the respondent for whom the individual works or worked, was the individual introduced/supplied to do the work by a third person, and if so, by whom? d) If so, were the terms on which the individual was engaged to do the work determined by the individual? If the answer is yes, the individual is not a worker within section 43K(1)(a). e)If not, were the terms substantially determined(i) by the person for whom the individual works or

(ii) by a third person or

(iii) by both of them? If any of these is satisfied, the individual does fall within the subsection. f)In answering question (e) the starting point is the contract (or contracts) whose terms are being considered. g) There may be a contract between the individual and the agency, the individual and the end user and/or the agency and the end user that will have to be considered. h) In relation to all relevant contracts, terms may be in writing, oral and may be implied. It may be necessary to consider whether written terms reflect the reality of the relationship in practice. i) If the respondent alone (or with another person) substantially determined the terms on which the individual worked in practice (whether alone or with another person who is not the individual) then the respondent is the employer within section 43K(2)(a) for the purposes of the protected disclosure provisions. There may be two employers for these purposes under section 43K(2)(a).

[85]Accordingly, although the general principle is that an employee cannot have more than one employer in the same employment, s.43K creates an exception to this, as a worker can be s.230(3) worker of one employer and a s.43K worker of another employer in relation to the same employment/work: McTigue at [25] - [29].

[86]When considering whether an individual substantially determines his terms of engagement the comparison is between the individual and the other persons involved, considering the situation between the individual and the end user, or the individual and the supplier, or the individual and both supplier and end user. A comparison between the supplier and the end user is not appropriate: McTigue at [20].

[87]When determining who substantially determines a claimant’s terms of engagement for the purposes of s.43K(1)(a)(ii) the tribunal should make the assessment on a relatively broad brush basis, having regard to all the factors bearing on the terms on which the claimant was engaged to do the work: Day v Lewisham & Greenwich NHS Trust and another

[2017] ICR 917

at [29]. Claimant’s Submissions

[88]It is submitted by the claimant, that, in reality, there was no agreement between R1 and Epinots Ltd; that he was a worker under all heads: he was a contract worker of R2 under s41 EqA; a s47 ERA worker; and it is clear that the claimant was supplied to R2 by R1 and is therefore a worker of both under s43 ERA.

[89]As far as R2 is concerned it is submitted that it is clear that, regardless of the arrangements between the claimant and R1, the claimant was supplied by R1 to carry out work for R2. He was a contract worker of R2 under s.41 EqA.

[90]As far as s.43K is concerned it is submitted that it is clear that the claimant was supplied to R2 by R1 to carry out work and the terms of his engagement were wholly dictated by R1 and/or R2. Respondent’s submissions

[91]It is submitted that the claimant’s claims are doomed to fail as a matter of law for a multitude of reasons but primarily because of a lack of any contractual relationship between him and R1 and R2. Conclusions Relationship between the claimant and Epinots

Conclusions

[92]The Tribunal concludes that the claimant was in business on his own account, running Epinots as a consultancy and as an independent organisation.

[93]The claimant’s assertions that R1 insisted on Epinots being involved for payment purposes and told him to forget the terms in the contract and said that he had to go back to being a director and that, in fact, there was no agreement between R1 and Epinots is not accepted. Other than the claimant’s oral evidence there was no supporting evidence for those assertions, despite the late disclosure made by the claimant on which he sought to rely in this regard (see above).

[94]The claimant’s assertions are totally inconsistent with the dialogue and language in the emails with R1 in which the claimant signs himself off as a representative of Epinots. There is no evidence of R1 at any time telling the claimant that the contract with Epinots was in any way a sham, or was really between him and R1.

[95]It is indisputable that Epinots was incorporated in August 2018 some five years before any relationship existed between it and R1. The claimant had been involved in that company since its inception both as an owner and a director at different points in time.

[96]The nature of that business is recorded on Companies House as undertaking “management consultancy activities (other than financial management)”.

[97]Significant others are, or have been, involved in that company, both as shareholders and directors, including Mr Uzor and Mr Zeigler. It is an independent business being operated by the claimant and others.

[98]Further, this is not a case in which the claimant set up a limited company of which he was a sole director and employee. Indeed, when he accepted the work with R2 he was neither a shareholder nor a director of Epinots. Nonetheless, he described himself as a Chief Operating Officer in communications with R1 and sought to negotiate terms on behalf of Epinots.

[99]As a result that, at least in theory, Mr Uzor as the then owner, would be entitled to the money the claimant earned. This leads to an assumption that there must have been some arrangement with Mr Uzor for the claimant to be paid, though the claimant gave no evidence as to the arrangements in place in this regard, nor did he offer any explanation for why he used an Epinots email address; signed himself off as the Chief Operating Officer; negotiated terms on Epinots behalf or offered Epinots as the vehicle through which he was engaged, other than to say that R1 insisted on it for payment purposes. Does the contract reflect the reality of the situation?

[100]A tribunal will only be entitled to imply a contract between an agency worker such as the claimant and an end-user where it is necessary to do so to give business reality to the situation. No such necessity arises where the arrangements are genuine and accurately represent the relationship between the parties.

[101]The Tribunal finds that that terms of the Agreement provide an accurate record of the parties’ rights and obligations towards each other. There is no evidence of them being disputed. The claimant sought to push back on some of the terms and so did not accept the Agreement or its terms blindly, and chose to accept the terms when R1 said there could be no changes to them.

[102]This was a genuine tripartite arrangement between R2, R1 and Epinots. There is no basis for implying a contract between the claimant and R1 or R2.

[103]As the claimant cannot show that he was a party to the contract providing services to R1 or R2, he cannot therefore be its employee or worker in accordance with the statutory definition within the ERA and EqA. The claimant has failed to overcome the very first hurdle of demonstrating the existence of a contract between him and R1 or R2. On the facts, it is plain that R2 only ever contracted with R1 regarding the engagement of the claimant’s services and that R1, as an agency, provided to R2 the services performed by the claimant (which the claimant, in turn provided through his company, Epinots).

[104]Turning to the relationship between the claimant and R1, again the claimant cannot be its employee or worker in accordance with the statutory definition within the ERA and EqA because there is no contract between him and R1. Just like Mr Horton’s situation in Plastic Omnium Automotive Ltd v Horton (above), the contract was between R1 and the claimant’s limited company, Epinots. It is unsustainable for the claimant to argue that this was some kind of sham arrangement for the following reasons below.

[105]R1 and/or R2 cannot be said to be anything other than one of Epinots’ clients or customers during the period of engagement between November 2023 and January 2024. Epinots received the consideration in the form of payment.

[106]There is evidence to demonstrate that the ability to substitute the claimant for someone else during that engagement was a genuine unfettered right and that the claimant could call upon other consultants to do so, such that the claimant was not required to provide personal service. Indeed, the claimant offered to find another consultant at the end of his engagement.

[107]Even if it could be said that a contract should be inferred between the claimant and R1, and that the claimant was required to provide personal service, he was undoubtedly in business on his own account operating through Epinots so as to fall within the client/customer exception (for example, like Mr Bijou (see above), on at least one occasion the claimant describes himself on Companies House as an “entrepreneur”). Was the claimant a worker of R1 and/or R2 under s.230(3) Employment Rights Act 1996 (ERA)?

[108]The definition of a worker under s230(3) ERA, excludes those who are genuinely in business on their own account and undertake work for their clients or customers.

[109]The claimant was not therefore a worker within the meaning of s230 ERA. Was the claimant an employee of R1 and/or R2s under s.83 Equality Act 2010 (EqA) (employment for the purposes of the EqA)?

[110]The ‘customer or client’ exemption applies just as much to “employment” under s83(2)(a) even though the statutory language is silent in this respect, as per Alemi. There is no significant difference between the definition of an ‘employee’ under s83(2)(a) EqA and a limb (b) worker for the purposes of s230(3) ERA, both of which exclude those who were genuinely in business on their own account and undertake work for their clients or customers.

[111]The claimant was not therefore an employee within the meaning of s83 EqA. Alternatively, was the claimant a contract worker of R1 and/or R2 under s.41 EqA 2010?

[112]As the claimant was in business on his own account, he does not satisfy the definition of a contract worker of R1 and/or R2. He was an individual operating through a service company in which he had an interest and was therefore not an employee of that company but was instead using it as a vehicle through which to carry out his own business undertaking on a self-employed basis.

[113]As in Bijou, the claimant was not an employee or worker of Epinot, but operated as an entrepreneur negotiating for different contracts that he (or others) undertook for them as the owner of his business and he cannot therefore rely upon the ‘contract worker’ provisions in s41 EqA to pursue a claim of discrimination against R1 and/or R2. Was the claimant a worker of R1 and/or R2 under the wider definition in s.43K ERA 1996?

[114]At all times this was a ‘business to business’ arrangement. The claimant cannot rely on s43K(1) ERA because he was, and has always been, operating a business on his own account through Epinots or for Epinots, and therefore he is exempt from these sections. The section 43 protection does not cover the genuinely self-employed or those operating through their own business undertaking.

[115]If the consultant falls outside the definition of worker under s230(3)(b) ERA because the other party to the contract is a client or customer of any profession or business undertaking carried on by the consultant, then he or she will also fall outside the extended definition in s43K(1)(b). Section 43K(1)(a) will also not be satisfied because the claimant will not be working for anyone other than himself or his company. Approved by: Employment Judge Rice-Birchall 7 January 2026 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice-directions/