Employment Judge ComfortIn person for claimantDate 17 October 2024
JUDGMENT
The claimant’s claim for unlawful deduction from wages is not well-founded. The claim is dismissed. JUDGMENT having been sent to the parties on 4 October 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The claim form was presented on 12 April 2024. The claimant pursues claims of unlawful deductions from wages and failure to provide written terms and conditions of employment.[2]The complaints arise from the claimant undertaking painting work for the respondent from 15 January 2024 to 5 February 2024.[3]The respondent did not respond to the claim.
The hearing
[4]The claimant attended the hearing on 4 October 2024. The hearing was in person. The respondent did not attend.
The Issues
[5]The two key issue to be determined were:(i) Was ZT Decorating Ltd the correct respondent in this matter?(ii) Was the claimant an employee or worker of ZT Decorating or was he self-employed?
Evidence
[6]I heard oral evidence from the claimant. There was no bundle of documents provided and no witness statement. There was no information provided by or about the respondent. The claimant provided details of exchanges on WhatsApp messages.
Findings of fact
[7]The Tribunal has determined and evaluated all the relevant evidence to make findings of fact relevant to the issues as follows.[8]The claimant responded to an advertisement for painters and decorators, which appeared to be on behalf of ZT Decorating Ltd. He responded to the advertisement but at no time spoke with anybody in person or by telephone.[9]The claimant made all of his working arrangements with a Mr Zack Anthony. The claimant never met Mr Anthony; all of his business was conducted through text messages or WhatsApp.[10]The claimant was not provided with any contract or terms and conditions.[11]The claimant did not know if Mr Anthony was an employee or officer of ZT Decorating Ltd or had any relationship with the company.[12]The claimant was given work by Mr Anthony to paint doors at a rate of £50 for each door.[13]The claimant invoiced Mr Anthony for the work that he had undertaken based on the doors he had painted. One invoice for £400 was paid without deduction for tax or national insurance.[14]The claimant used his own tools and purchased materials such as paint, which he added to his invoice.[15]The claimant had flexibility about how he worked. The claimant did not work full-time every day.[16]The claimant describes himself as a sole trader and says that he has been registered as a sole trader for a number of years.[17]The claimant says that he has always issued invoices for the work he has undertaken and has always taken responsibility for paying his own tax and National Insurance.
Law
[18]The relevant law relating to unpaid wages and holiday pay is contained in Sections 13 and 27 of the Employment Rights Act 1996 (“ERA1996”).[19]Section 13 of ERA1996 applies to claims for unpaid wages: Right not to suffer unauthorised deductions (1) An employer shall not make a deduction from wages of a worker employed by him unless – (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.[20]A broad definition of deductions is set out in Section 13 (3)&(4) of ERA1996: “Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”[21]Section 27 of ERA1996 defines wages: Meaning of “wages” etc. (1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including – (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise…[22]The relevant law on what constitutes an employee, a contract of employment and a worker is found in ERA1996, the Working Time Regulations 1998 and the Equality Act 2010. Employee status[23]Section 230 (1) of ERA1996 defines an employee as: “…an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.”[24]Section 230(2) of ERA1996 provides that ‘a contract of employment means: “… a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.”[25]In Section 83(2)(a) of the Equality Act 2010 employment is defined as: “…employment under a contract of employment, a contract of apprenticeship or a contract personally to do work.”[26]The description of a contract of employment is set out in the judgment of McKenna J in Ready Mix Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 10 ER 433, QBD in which he stated:- “A contract of service exists if three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own working skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control to a sufficient degree to make that other master.(iii) The other provisions of the contract are consistent with its being a contract of service... Freedom to do a job either by one’s own hands or by another’s, is inconsistent with a contract of service, though a limited or occasional power of delegation may not be. “[27]Following Ready Mixed Concrete the courts nave established that there is an ‘irreducible minimum’ without which it will be all but impossible for a contract of employment to exist and it is now widely recognised that this entails three elements:(i) Control(ii) Personal Performance(iii) Mutuality of obligation. Worker status[28]Section 230(3) of ERA1996 provides: “A worker is defined as an individual who has entered into or works under either a contract of employment or, 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 professional business undertaking carried out by the individual.”[29]Regulation 2(1) of the Working Time Regulations 1998 has the same definition of a worker as found in the Employment Rights Act 1996 above.[30]The definition of a worker can therefore be broken down into 3 elements:(i) there must be a contract;(ii) there must be a requirement to carry out personal services; and(iii) the work done must be for another party to the contract who is not a client or customer of the individual’s profession or business undertaking. Employee. Worker or self-employed[31]In Uber BV v Aslam [2011] UKSC5, the Supreme Court described the three-fold categorisation of employment status: “...employment law distinguishes between 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 selfemployed but who provide their services as part of a profession or business undertaking carried on by someone else.”[32]In O’Kelly & others v Trusthouse Forte plc [1983] ICR 728 CA Sir John Donaldson confirmed that, in approaching the question of whether a claimant was an employee and also the question of whether a claimant is a worker in the alternative, a Tribunal must “consider all aspects of the relationship, no single factor being in itself decisive and each of which may vary in weight and direction, and having given such balance to the factors as seems appropriate, to determine whether the person was carrying on business on his own account”.[33]Section 1 of ERA1996 requires that an employer must give a written statement of employment particulars to both employees and workers. Employers must provide a written statement: no matter how long the person's employed for; and on or before the person's first day of work.
Conclusion
[34]The Tribunal has applied its relevant findings of fact and the applicable law to determine the issues in the following way. Respondent[35]The claimant accepts that he knows little, if anything, about ZT Decorating Ltd or Mr Anthony.[36]In his particulars of claim he says that those assisting him, undertook a company search on ZT Decorating Ltd. That search identified a ‘strike out’ application on the record at Companies House. Enquiries were also made of the Insolvency Service, which, the claimant says, did not identify any live insolvency record for the company.[37]No further details have been provided about the company from that search.[38]The claimant accepts that he had no direct contact with Mr Anthony and did not seek to clarify Mr Anthony’s relationship with ZT Decorating Ltd.[39]The claimant’s only reason for saying that the respondent in this matter is ZT Decorating Ltd is because that is the name that he says was on the advertisement.[40]In the absence of any further information I could not conclude that the respondent in this matter was ZT Decorating Ltd. It is quite possible from the information provided that the respondent is Mr Anthony who was acting on his own to engage the claimant in work. Employment status[41]Aside from my finding in relation to the respondent, I have considered the situation regarding the claimant’s employment status if it could be determined that ZT Decorating Ltd was the correct respondent in this matter.[42]The claimant accepts that there was no documentation setting out the contractual relationship between himself and the respondent. In the absence of any written agreement, the Tribunal must consider the reality of the arrangements between the parties based on the evidence that it heard.[43]The claimant says that the arrangement was that the respondent would provide him with details of doors to be painted and the location. This information would be provided by text message or WhatsApp. He would be paid £50 for each door painted. It would be for the claimant to determine how long this took and how he managed his day. Once a door or set of doors had been painted, the respondent would provide the claimant with details of other doors to be painted.[44]The claimant was not paid a fixed wage either on an hourly, daily or weekly basis. He was paid for each job completed. In his particulars of claim he says that “I worked on average £100.00 per day. I worked on average 4.5 days per week meaning an average of £450.00 per week.” The claimant accepted that this was based on the number of doors he had painted. The fact that he provided average pay indicated a degree of flexibility each week.[45]The claimant was unable to say for how long the work for the respondent would last. It was not clear, therefore, whether the respondent had an obligation to continue offering the claimant work either at an agreed quantity of doors or at all.[46]The claimant’s position in relation to control is that: “I was sufficiently integrated into the Respondent’s company that there was control over me. I received instructions of locations where he was to perform my work as well as the dates and times of each job from the Respondent.”[47]The claimant provided no information as to how he was integrated into the respondent’s company. The only control exercised over him was to provide details of the time, date and location of each job. The claimant provided his own equipment and set his own time to undertake each job.[48]Although it is accepted that for a skilled tradesman, supervision may be minimal, the claimant was not subject to any supervision whilst he was painting doors and the claimant provided no details of any quality assurance undertaken by the respondent in relation to his paintwork.[49]In all the circumstances it could not be said that the claimant was subject to a level of control by the respondent consistent with there being a contract of employment.[50]The claimant says that: “I had to perform this work myself with no possibility of substitution by another individual. There was therefore personal performance on my part.”[51]As the claimant’s work was not supervised, he could have arranged for substitution by another. In the absence of any details of the arrangement between the claimant and the respondent it cannot be confirmed that work had to be undertaken personally by the claimant even if in practice this was the case.[52]In relation to mutuality of obligation the claimant says “the Respondent appears to have been required to provide work and for me to perform it. There was potentially therefore a mutuality of obligation.”[53]It is understandable why the claimant was not confident that there existed a mutuality of obligation. There is no evidence that the respondent had to provide a set number of doors to be painted each week or that the claimant had to carry out a specified amount of work. In these circumstances there is no evidence that the respondent was obliged to continue providing the claimant with work.[54]In all the circumstances the Tribunal was satisfied that the claimant was not an employee. The key characteristics of a contract of employment were absent from the relationship because there was no mutual obligation to offer or accept work, there was insufficient control by the respondent over the claimant and the claimant was under no obligation to provide personal service. Furthermore, the majority of the working arrangements and financial arrangements between the parties were inconsistent with there being a contract of service.[55]In respect of the alternative case that the claimant had worker status the absence of the necessary elements of mutuality of obligation and of personal service apply. In addition, taking account of all of the circumstances I consider that it is more likely than not that the relationship that the claimant had with the respondent was one of client or customer.[56]For the above reasons, including the fact that the claimant describes himself as a sole trader and says that is how he has always operated, I find that the claimant was carrying on business on his own account as a self-employed contractor.[57]In these circumstances, the requirements under Section 1 of ERA1996 to provide a statement of initial employment particulars do not apply.[58]Similarly, the provisions of Section 13 of ERA in relation to deduction from wages do not apply.[59]In summary, therefore, I find that the claimant has not demonstrated that ZT Decorating Ltd is the respondent in this matter; and, even if it was, the claimant was not an employee or worker but a self-employed contractor.[60]The claim is not well-founded and is dismissed.