R D E Gooch v British Free Range Egg Producers Association (BFREPA) and British Free Range Egg Producers Association (BFREPA Ltd): 3308980/2024
EMPLOYMENT TRIBUNALS
Case No 3308980/2024
Between
Robert Dominic Edmund GoochClaimantBritish Free Range Egg Producers Association (“BFREPA”) (1) British Free Range Egg Producers Association (“ BFREPA Ltd”) (2) RECORD OF A HEARING Preliminary hearingRespondent
Before
Employment Judge BoyesDate 5 August 2025
JUDGMENT
The Claimant was an employee, working under a contract of employment as defined by s 230(1) of the ERA 96, section 2 of The Working Time Regulations 1998 and section 88(2) of the Pensions Act 2008 The Claimant’s claim against the first Respondent was made in time and so the Tribunal has jurisdiction in respect of that claim.
REASONS
[1]An oral judgment and reasons were delivered to the parties at the conclusion of the open preliminary hearing on 19/5/2025. At the hearing, the Claimant exercised his right to request written reasons and these written reasons are provided in compliance with that request.[2]I apologise to the parties for the delay in providing these written reasons, and the separately issued written case management orders, which has arisen as a consequence of health reasons. 1 of 17
INTRODUCTION
[3]ACAS early conciliation took place in respect of the first Respondent between 4/7/2024 and 15/8/2024 and in respect of the second Respondent between 27/8/2024 and 28/8/2024.[4]The claim was lodged with the Tribunal on 2/9/2024. Both Respondents are named in the claim form[5]The complaints before the Tribunal are ones of:(i) unfair dismissal contrary to section 94(1) Employment Rights Act 1996 (“ERA”);(ii) unauthorised deduction from wages contrary to section 13(1) of the ERA;(iii) unpaid holiday under Regulation 16 of the Working Time Regulations 1998;(iv) for wrongful dismissal for the failure to pay statutory notice on termination of contract;(v) breach of contract for pension loss arising out of the Respondents’ failure to enrol the Claimant into an “automatic enrolment scheme” in breach of the Pensions Act 2008 s3(2).[6]The issues that to be determined as preliminary issues were the Claimant’s employment status and whether his claims were made in time.[7]The Respondents deny all claims.[8]In respect of the preliminary issues to be decided, the Respondents’ position was that the Claimant was self-employed, not an employee or worker, and that the claims against the second Respondent was made outside the primary three-month time limit.[9]The Respondent had previously asserted that claims against both Respondents were made outside the primary three-month time limit. However, during the course of closing submissions, it was conceded by the Respondents that the claim against the first Respondent was made inside the primary three-month time limit. THE PROCEEDINGS/HEARING Transcript of covert recording[10]The Respondents made an application to exclude the transcript [at 260-265 of bundle] of a covertly recorded meeting which was held at the Holiday Inn, Telford on the 15/2/2023. The Claimant, James Baxter and Trevor Sellers were present at that meeting. The Claimant made the recording without the knowledge of the other participants at the meeting. He was present throughout the meeting. There were no private discussions during the course of the meeting from which the Claimant was excluded.[11]I heard submissions from the parties. The Respondent submitted that the transcript should be excluded because it was made without the knowledge of the Respondents or James Baxter and Trevor Sellers. The Respondents did not become aware of it until recently. It is a partial recording and so does not portray the meeting in its entirety. The Respondent questioned why it was terminated at the point that it was rather than being a recording the entire meeting, implicitly 2 of 17 suggesting that what was said after the termination of the recording was unhelpful to the Claimant or helpful to the Respondents.[12]In deciding on the admissibility of the transcript of the covert recording, I have had regard to the principles identified and guidance provided in the case Chairman and Governors of Amwell View School v Dogherty 2007 ICR 135, EAT.[13]I decided that the transcript of the covert recording should be admitted in part. This was for the following reasons. The accuracy of the transcript itself is agreed. The recording was of a meeting at which the Claimant was in attendance so he was fully aware of the discussion that took place: this was not a covert recording of a private discussion not involving the Claimant. It was a work-related meeting. No record or minutes of the meeting was kept by the Respondents. What was said during the course of the meeting is potentially material to the disputed issue of employment status.[14]Whilst the Respondents assert that the recording does not provide a reliable reflection of what was discussed overall, because the record cuts off before the end of the meeting, they have not explained what it is asserted was said after the recording ended or how this actually disadvantages the Respondents. The Claimant asserts that the recording cut off because there was insufficient memory left the on the device being used to record. The Respondents submit bad faith on the part of the Claimant in this respect asserting that it was terminated at a convenient time. However, no clear explanation was provided as to why it was advantageous to the Claimant to end the recording at that junction. This was therefore no more than a bald assertion on the part of the Respondents. I considered that the Respondent’s witnesses (James Baxter and Trevor Seller) could give evidence on what was discussed after the recording cut off, as could the Claimant. This would ensure that there was no prejudice to the Respondent.[15]In all of the circumstances, I considered that it was in the interests of justice and fairness to admit the recording in part.[16]The transcript of the recording at pages 260 and 261 of the bundle are not admitted as it records a general conversation that is not in any way work related and so not material to the issues before me. On page 262, the first five lines are not admitted. The transcript at page 262 is admitted from the sixth line onwards where it reads “JB I actually resolved to book a room or something […].” The remainder of page 262 following on from this is admitted as are pages 263 and 264. For the final hearing, pages 260 and 261 are to be excluded and the first five lines of page 262 are to be redacted. Witnesses[17]The Respondent requested permission to call an additional witness, Nick Tilt. The Claimant objected as his statement was only provided shortly prior to the hearing rather than on the timetabled date for exchange of witness statements. Having considered his witness statement, I was satisfied that his evidence was material, that it would not cause unfairness to the Claimant if he were permitted to give evidence and that, on balance, it was in the interests of justice to hear his evidence.[18]The Claimant gave oral evidence. He adopted his statement, was cross examined by the Respondent and asked questions by me to clarify his evidence. 3 of 17[19]The Respondent called four witnesses, Karen Campbell, James Baxter, Trevor Sellers and Nick Tilt. Each adopted their witness statements, were cross examined by the Claimant and asked questions by me to clarify their evidence.[20]The Respondent had also previously intended to call Alison Bone to give evidence and she had provided a witness statement. However, I was informed that she did not wish to give evidence.[21]Both parties provided written closing submissions and made further brief oral closing submissions. Submissions on time limits in respect of second Respondent[22]At the conclusion of oral evidence, on 7 May 2025, I indicated that, were I to find in the Claimant’s favour in terms of employment status, I would like to hear submissions in relation to any substitution of the name of the first Respondent to that of the second Respondent under the Tribunal’s case management powers. I considered that this was the most appropriate course to deal with the issue raised by the Respondents in relation to the claim against the second Respondent having been made out of time. I considered that to deal with the issue in this manner accorded with the overriding objective.[23]Having handed down oral judgment and reasons on 19 May 2025, I heard submissions on this issue and made further case management orders. I ordered that the name of first Respondent be substituted to the name of second Respondent. My reasons for that decision are contained my Case Management Orders which will be issued separately.[24]I deferred consideration of this issue until after handing down judgment and reasons on the employment status on 19 May 2025 because I considered that it was not a good use of the Tribunal’s resources to hear submissions on this issue prior to the Tribunal having made a decision on the preliminary issue of employment status. In addition, by deferring the issue until the 19 May 2025 the Respondents had advance notice and an opportunity to consider their position. Documents[25]I had a bundle before me of 374 pages. A further three pages of evidence provided by the Claimant were added at the commencement of the hearing making the bundle 377 pages. I had witness statements for each witness and written closing submissions from the Claimant and Respondents.
FINDINGS OF FACT
[26]Having considered the oral witness evidence and documentary evidence before me, and having considering all of that evidence in the round I make the following findings of fact:[27]The Claimant commenced working for the first Respondent on 1/11/2011.[28]The Respondent is a membership association acting on behalf of free-range egg producers throughout the UK. At the time of the Claimant’s appointment, it was an unincorporated association. It was incorporated in September 2023 and is a company limited by guarantee with no person with sole control. It is registered at Companies House. On the evidence before me, I find that there is no material difference in the business activities conducted previously by the unincorporated 4 of 17 and those now undertaken by the incorporated body: business activities carried on in the same manner before and after incorporation.[29]At a meeting of the 12/7/2011, before the Claimant had been appointed, the first Respondent’s Council considered what the main functions of the new Policy Director should be and listed the following in the minutes: “-arranging 2 meetings a year for members in each region -to stand up for free range egg producers and ensure policy reflects free range priorities -to promote free range egg production to consumers and schools -forge direct links with supermarkets and egg packers -seek opportunities to develop fairer contracts for producers -influence and maintain information about research linked to free range production -gather statistics and information of use to free range producers -explore opportunities for expanded member services -work closely with other industry organisations including the NFU and BEIC, without duplicating their work -manage policy at Council meetings.”[30]It is also recorded that “It was agreed the key functions for the Policy Director would form the basis of discussions for the upcoming meetings.”[31]The Claimant responded to an advertisement for the position of Policy Director for the Association in Farmers Weekly Magazine in 2011. He submitted a curriculum vitae and was invited to an interview. This was a competitive process involving more than one candidate. The minutes of the BFREPA council meeting of the 4/11/2011 record that “Robert was invited to take up the position and a package has been agreed of £35,000 annual fee on a contracted services basis to include office costs. Robert will be required to work the equivalent of 2.5 days week and cannot work for any other poultry company whilst contracted to BFREPA. He will also on termination of his contract be asked not to undertake any other egg industry work for a minimum of 6 months. JR is proposing that a small group of Council members, including the Chair and Vice with 3 others be organised to act as a Policy Steering Committee to guide and support Robert.”[32]He was offered and accepted the position and starting working on 1/11/2011. An article in the Farmer’s Weekly Magazine includes the following “The new part-time role has been created to try and bolster BFREPA’s lobbying effort on all matters affecting the free-range egg industry. […] Mr Gooch is currently a policy analyst at UK and EU level for clients in the dairying, cropping and environmental sectors. “He brings with him a wide breadth of experience having carried out contracts for the Environment Food and Rural Affairs Committee at the House of Commons, along with other services for DEFRA and the Potato Council in Brussels,” said BFREPA chairman John Retson.”[33]Prior to accepting employment, the Claimant had been informed by the Chairman of the Council, John Retson, that the Respondent had no employees. He was 5 of 17 informed that he would be required to submit invoices on a monthly basis as a selfemployed individual. The Claimant was not asked to set up a limited company for these purposes and he did not do so. He submitted his first invoice in November 2011 to John Retson for payment as instructed and continued, throughout the subsequent 12 ½ years, to invoice on a monthly basis.[34]On 28 February 2012, the Claimant received a written contract, which is entitled Contract for Services. The contract cites the Claimant’s title as Policy Director. The Contract Period is expressed as, “Shall be a minimum of six months from 1 November 2011 and continuous until terminated by means of 3 months’ notice given by either party.”[35]Remuneration is dealt with in the contract which reads “The annual fee for services is agreed to be £35,000 plus VAT to include all office expenses but travel and accommodation expenses incurred as a result of carrying out work for BFREPA will be paid in addition. RG shall submit a regular VAT invoice for work and expenses on a monthly basis to the Treasurer of BFREPA. The amount to be paid will be reviewed periodically and not less than on the anniversary of the commencement of the agreement.”[36]The contract states that the obligations of the parties were as follows: “RG shall: a) Provide BFREPA with part-time (2.5 days per week equivalent) policy services in accordance with the attached Job Description. [no such attachment has been provided] b) Provide appropriate equipment for the use of the Policy Director to ensure the service is to the standard required by the BFREP A executives. c) Ensure the Associations' policy requirements are undertaken regularly in accordance with a time scale agreed with BFREPA office holders. d) Shall not undertake any other poultry policy consultancy or service provision with any other poultry company or organisation whilst under contract to BFREPA. e) Shall maintain the confidentiality of BFREPA’s membership according to data protection requirements and shall act appropriately in terms of respecting the confidentiality of the work of the Association when appropriate or instructed to do so. d) Liaise with members of the Council to ensure sufficient cover is provided for any short term absences. e) Indemnify BFREP A against any claims associated with or arising from the work undertaken as described in this service agreement PROVIDED it is proved to be negligence in the provision. BFREPA shall: a) Punctually pay on a monthly basis the agreed Fee thereon via an agreed method. b) Provide RG with all the relevant information needed to enable the services to be effectively and efficiently delivered. c) Periodically review the volume and type of workload and discuss same with RG.” 6 of 17[37]The contract period is expressed as “Shall be a minimum of six months from 1 November 2011 and continuous until terminated by means of 3 months notice given by either party.”[38]There is a post restrictive covenant: “In the event that this service agreement is terminated for whatever reason, RG shall undertake not to seek employment in an egg industry related role for six months from the date of termination, nor disclose confidential information about BFREPA to other poultry industry companies or associations during that time.”[39]All the contracts subsequent to the one issued on the 28/2/2012 contain the same, or very similar, key terms.[40]The first Respondent’s 2012 Rules of Association state that “the affairs of the Association shall be managed by a Council which shall carry out any functions assigned to the Council by these Rules”. Rule 23 reads: “Secretary - The annual general meeting shall appoint and may remove by a simple majority a Secretary and may appoint other such servants as it thinks fit. The Council shall determine the duties of the Secretary and any other servant and any remuneration to be paid to them.”[41]The AGM of 2013 (pages 151- 152) reads: “Director of Policy & Ranger/website Editor Council would also like to recommend that the roles of Director of Policy and Ranger Editor which currently are not mentioned at all in the Rules of Association, should be given a permanence in the structure of the Association and be written into the rules. Therefore the Steering Committee would like to propose to Council that the Rules of Association be changed so that point 23 under sub heading IV Officers be moved to point 13 under sub heading III Council and to read, “The Council shall appoint and may remove by a simple majority a Secretary, a Treasurer, a Director of Policy and Editor of the Ranger magazine & website, and may appoint other such staff as it thinks fit. The Council shall determine the duties of any staff and any remuneration to be paid to them.” ”[42]There is an amended document which is entitled Contract for Services dated 11/2/2014. This increased the annual remuneration to £42,000 for three days work per week. There was an increase in notice period to 12 months.[43]In 2016, the Claimant’s role was changed to that of providing chief executive services. There is an amended document which is called a Contract for Services dated 28/6/2016 relating to Provision of Chief Executive services. There is reference in the contract to the chief executive services being in accordance with an attached job description. Neither party produced any such attachment.[44]There is an amended document which is called a Contract for Services dated 27/6/2017. The annual fee for services was changed to £54,766.36 plus VAT and the hours increased to 3.5 days per week equivalent.[45]There was a meeting on 15/2/2023 to discuss the Claimant’s contractual terms. This was held in the bar of the Holiday Inn Telford. James Baxter (Chair), Trevor Sellers (Vice Chair) and the Claimant were present. There is a transcript of part of the discussions that took place resulting from a covert recording made by the 7 of 17 Claimant. The recording ended before the meeting finished. The Respondent accepts that the transcript accurately reflects what is said in the audio recording.[46]During the course of that meeting the following was said: James Baxter “And one of the other things that we need to sort out is and it’s a question that has been asked to me a couple of times. Is the, we are running very close to the wind on whether you are actually an employee, as opposed to self-employed, so we are gonna to have to sort that out. Err, ye know that sort of thing. And the way that you get paid, ye know, a retainer every month, makes it also makes you look incredibly like self, like you are employed.”[47]Later in the meeting the following exchange took place: James Baxter “[…] I don’t think we need 3.5 days anymore. I think we probably need 2.5 days. And I think at the end of the day we are meant to have these annual meetings or whatever to discuss the workload and to discuss what’s to be done. I think that is where we should be going forward, what do you think.” Claimant “I think that’s wrong. You are the client. You can decide whatever time you want. It’s not up to me, it’s up to you.”[48]Shortly after the following exchange took place: Trevor Sellers: “I totally agree with it. Umm, I know it’s (indistinct) and I am also worried about the Tax implications um because we are liable as a Council if they class you as employed, like to the rest of us it looks like you are.” Claimant: “Why has that changed in 11 years then?” James Baxter: “I don’t think it has changed in 11 years. I think we are just so much more aware of it now. If you go onto HMRC Check A Tool and put in your hours and what you do, and your relationship with the association, etcetera, it will pretty much put you in the scale of employee. So, I mean I don’t think..”[49]On the 17/3/23, James Baxter wrote to the Claimant and stated “Following our discussions at Telford we are writing to formally give you 12 months notice of termination of your contract for services as required in paragraph 2 of the contract dated 27 June 2017.”[50]The Claimant continued to undertake work for the Respondent during 2023 and up to the 26/4/2024.[51]In the meantime, there was a Board Meeting on 13/2/2024. The minutes record the following: “RG currently receives a monthly fixed retainer for his services. JB proposed to the board that BFREPA Ltd retain RG as a consultant on a contract. TS seconded the proposal Vote: all in favour. The terms of the contract were then discussed and it was proposed by TS that RG be contracted for 70 hours per month at £50/hr. RG to invoice BFREPA monthly. The new contract would be subject to annual review and that RG would be able to 8 of 17 invoice for any additional hours he was required to work by agreement with chair/vice-chair. AR seconded the proposal. Vote: all in favour. JB would speak to RG regarding the new contract.”[52]On 8/4/2024, the Claimant received an email from James Baxter containing the offer of 70 hours per month at £50ph. There ensued an exchange of emails about this offer.[53]On 9/4/2024, a meeting took place between the Claimant, James Baxter (Chair), Trevor Sellers (Vice-Chair), Nick Tilt and Karen Campbell to discuss the terms of the proposed contract. No agreement was reached.[54]Until the 26/4/2024, the Claimant continued to undertake his role and work the same hours as previously. He presented invoices covering up until the 19/4/24. The Respondent states that he was paid until the end of April 2024. The Claimant says that he was not paid until the end of the month but that is not a factual issue that I need to resolve in order to deal with the preliminary issues before me.[55]In live evidence James Baxter explained that there was a Board meeting on the evening of the evening 25/4/2024 and, at that meeting, a unanimous decision was made not to renew the Claimant’s contract.[56]On the morning of 26/4/2024, the Claimant’s BFREPA email account ceased to work. It later transpired that his email address had been disabled. James Baxter sent an email to the Claimant at 2.40pm on the 26/4/24 enclosing a letter which stated that BFREPA would not be offering him a new contract.[57]Up to the point of closing submissions, the Respondents asserted that the last day of work was 17/3/2024 whereas the Claimant asserted that it was the 26/4/2024. In closing submissions, it was conceded by the Respondents that the Claimant worked up until the 26/4/2024 so this is no longer in dispute between the parties. I therefore find as a fact that the last day of the Claimant’s work was 26/4/2025.[58]For the avoidance of doubt, had the Respondents not made such a concession, I would, in any event, have found that the last day of work was the 26/4/2024. This is because it was accepted by the Respondent’s witnesses that the Claimant continued to work after the 17/3/2024. Mr Baxter confirmed in live evidence that it would have been the Claimant’s expectation from 17/3/2024 until when he received the termination letter on 26/4/2024that he would be getting a new contract. The second Respondent decided at a board meeting on 25/4/2024 not to offer a further contract to the Claimant. It was only when the Claimant received the letter of termination on the afternoon of the 26/4/2024 that he became aware that his services were no longer required. The Respondent paid him for work undertaken subsequent to the 17/3/2024.[59]Whilst undertaking work for the Respondents, the Claimant also drafted articles for The Ranger magazine. The Ranger is provided monthly to the Respondents’ members as a membership benefit. It was agreed that the Claimant would be paid an additional half day a week for producing the articles. He was asked to invoice this work to the company that produced the Journal. That company would then recharge the Claimant’s fees to the Respondent.[60]The Ranger magazine promoted only the work of the Respondents, was solely for the benefit of the Respondent’s membership, and the sale of advertising space benefited only the Respondents. 9 of 17[61]From when the Claimant began working with the first Respondent in 2011, he was paid the agreed remuneration each month: there was not any gaps in payment over that 12 ½ year period other than, possibly, in the first year when there was two weeks that he was unable to work because of an appendicitis. He stated in evidence that he could not remember whether he was paid when he was unwell on this occasion: he thinks that an adjustment was made, but he could not remember the details.[62]The Claimant did not, at any point whilst working for the Respondents, decline work. He generally only took holiday for a week once a year (other than in 2023 when he went to New Zealand for three weeks). When he went on holiday he would make up the necessary hours. There was therefore no cessation of payment when he took holiday. Whilst on holiday he would arrange for a colleague to cover for him during meetings and for any other tasks that needed covering.[63]During the first few years of his engagement, the Claimant had his own public indemnity insurance but then stopped this after three to four years because the Respondents had organised cover for everyone in the organisation. As far as he was aware this covered him.[64]It can be seen from the various Council minutes that have been provided that the Claimant and other none Council members would leave the room when Council members voted on matter relating to the Claimant’s work and terms of appointment. This included when it was proposed that the Claimant’s role be changed to chief executive and when increases in payments to the Claimant and others were discussed and approved.[65]I heard evidence from the Claimant and each of the witnesses for the Respondents about their understanding of the Claimant’s employment status. Having heard all of that evidence, and also having considered what was said in meeting on the 15/2/2023, I formed the view that the Claimant and the Respondents had, in 2023 and quite likely from 2011 onwards, an awareness that its relationship with the Claimant was more akin to that of an employee than a contractor. That this was the position in 2023 is clear given what is said by James Baxter and Trevor Sellers at the meeting that took place on the 15/2/2023.[66]It is very clear from the evidence before me, and I find as a fact that, in performing both the policy and chief executive roles the Claimant was an integral part of the association. This is apparent from the evidence before me of the association publicising his initial appointment, from the minutes of the various meetings as well as from the tasks that he was required to perform.
THE RELEVANT LAW
[67]Section 230 of ERA states that: 230 Employees, workers etc.(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. 10 of 17(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 or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly.[68]The definitions of ‘employee’ and ‘worker’ to be found at section 2 of The Working Time Regulations 1998 are very similar in terms to those found at section 230(3) of ERA.[69]Section 88 of the Pensions Act 2008 is as follows: 88 “Employer”, “worker” and related expressions (1)This section applies for the purposes of this Part. (2)“Contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. (3)“Worker” means an individual who has entered into or works under— (a)a contract of employment, or (b)any other contract by which the individual undertakes to do work or perform services personally for another party to the contract. (4)But a contract is not within subsection (3)(b) if the status of the other party is by virtue of the contract that of a client or customer of a profession or business undertaking carried on by the individual concerned. (5)For the purposes of subsection (3)(b), it does not matter whether the contract is express or implied or (if it is express) whether it is oral or in writing. (6)Any reference to a worker's contract is to be read in accordance with subsections (3) to (5). (7)“Employer”, in relation to a worker, means the person by whom the worker is employed (subject to sections 37(5) and 38(6)). (8)“Employment” in relation to a worker, means employment under the worker's contract, and related expressions are to be read accordingly.[70]A key principle, accepted by the higher courts, is that in work related contracts, unlike commercial contracts, the Tribunal can look behind the formal terms of an agreement to assess the reality of the situation. This is because there is a recognition that there is the potential for there to be an inequality of bargaining power between the putative employer and putative employee. The Tribunal is required to consider whether the words of the written contract reflect the intentions or expectations of the parties. In essence, the Tribunal should stand back, look at all of the relevant factors and assess the reality of the contractual relationship. In Autoclenz Ltd v Belcher & Others [2011] UKSC 41 it was held that, in the context of employment relationships where the written documentation might not reflect the 11 of 17 reality of the relationship, it was necessary to determine the parties’ actual agreement by examining all the circumstances and identify the parties’ actual legal obligations. The relative bargaining powers of the parties is a relevant factor to be taken into account.[71]The landmark case which provides guidance on the status to be attached to a contract in a workplace context is Ready Mixed Concrete (Southeast) Ltd v. Minister of Pensions and National Insurance 1968 1 ALL ER 430QBD, more recently confirmed as correct by the Supreme Court in the Autoclenz V Belcher case.[72]The test identified in the Ready Mixed Concrete case requires the Tribunal to consider three questions:(i) did the worker agree to provide his or her own work in return for remuneration and in doing so demonstrate mutuality of obligation between the parties and personal performance by the worker?(ii) did the worker agree expressly or impliedly to be subject to a sufficient degree of control such that the relationship is one of employer and employee?(iii) were there other provisions of the contract consistent with a contract of service rather than a contract for services?[73]It is also a well established principle that, when assessing employment status, the Tribunal must not adopt a tick box exercise. Every case is unique and the Tribunal has to assess each case on its individual facts, taking a step back and looking at all of the factors that are relevant.[74]In the case of Pimlico Plumbers Ltd and another v Smith 2017 UKSC 0053, the Supreme Court confirmed that an unfettered right to provide a substitute is inconsistent with personal service, whereas a conditional right to substitution may not be. In essence, it all depends upon the degree to which the right is limited or occasional.[75]There is now a long line of case law that establishes that control may exist in the modern workplace even if direct day-to-day control is largely absent. This is particularly so where the individual provides a skill, or expertise, that is not susceptible to direction by anyone else in the organisation. In cases where the putative employer is relying upon the skill or expertise of the individual concerned, what matters is whether the putative employer has control over what the individual does rather than how he or she does it. MY CONCLUSIONS[76]In reaching my conclusions I have taken into account the written and oral closing submissions made by the parties, including the caselaw referred to in the written submissions. As I have decided that the Claimant is an employee, I have not gone on to considered if he comes within the definition of a “worker”. Jurisdiction -Time Limits[77]The Respondent had previously asserted that claims against both Respondents were made outside the primary three-month time limit. However, during the course of closing submissions, it was conceded by the Respondents that the claim against the first Respondent was made before the expiry of primary three-month time limit. 12 of 17[78]I was entirely satisfied that the Respondents were correct to concede this point. The evidence clearly demonstrated that the claim against the first Respondent was made within the statutory three-month time limit. As such the Tribunal has jurisdiction.[79]During the course of closing submissions, it was conceded by the Respondents that the last day of work was 26/4/2024. The claim form was lodged with the Tribunal on 2/9/2024. The last day for lodging the claim, taking into account ACAS conciliation in respect of the first Respondent, was therefore 15/9/2024.[80]The Respondent asserts that the claim against the second Respondent was made out of time given that early conciliation in respect of the second Respondent occurred later than in respect of the first Respondent. As there was a valid, in time, claim before the Tribunal, I considered that the most appropriate course was to deal with this issue by way of the Tribunal’s case management powers. My reasons for deciding that the name of the second Respondent should be substituted for the name of first Respondent is contained in my separate written case management orders. Employment status Mutuality of obligation and personal service[81]In terms of the first question, which relates to mutuality of obligation and personal service, I have taken into account the following.[82]The contract guaranteed the Claimant a fixed monthly sum. That sum was quite significant, initially amounting to £35,000 for 2.5 days per week and ultimately rising to £54,766.36 for 3.5 days per week. There was an obligation to pay those sums under the contract and the Respondents have paid them for a very considerable period of more than 12 ½ years. This has been so regardless of the tasks undertaken by the Claimant during any given month. In return, the Claimant was required to undertake various tasks in each of his roles. Notably there were no gaps in those payments, other than possibly for a two week period in around 2012 when the Claimant was sick with an appendicitis. I am therefore satisfied on the facts as I find them that there was mutuality of obligation in this case.[83]There is no general substitution clause permitting the Claimant to substitute himself for another individual in any of the contracts before me.[84]The Respondents’ case is that the requirement that the Claimant “liaise with members of the council to ensure sufficient cover is provided for any short-term absences” is, in effect, a substitution clause.[85]The Claimant’s evidence was that cover was only ever provided by other officers of the association. I accept his evidence in this respect. I consider that the meaning and intention of the clause referred to in the previous paragraph is simply a practical one. I do not consider that the clause can sensibly be read as a general substitution clause permitting the Claimant to provide another individual to undertake his role if he was not available. I consider that its everyday meaning, particularly bearing in mind that there is reference to ‘sufficient cover’, is simply to ensure that tasks were covered whilst the Claimant was absent. I would not even go so far as to say that this clause provides, or was intended to provide, a conditional right to substitution. It cannot be inferred, on a common sense reading 13 of 17 of the clause concerned, that it requires the Claimant to provide such cover at his own expense.[86]Further, the reality of the situation is that the Claimant has never, over the 12 ½ year period, provided a substitute at his own expense but rather arranged that his work was covered solely by other officers of the Respondents. Whilst I do not consider this is a substitution clause at all, for reasons that I have provided, even if I were wrong about that, the clause would provide for, at the most, a very limited or occasional substitution and so is not inconsistent with personal performance.[87]I am fortified in my view that there was never any intention that there be a general right to substitution given the evidence before me relating to the manner of the Claimant’s recruitment and the importance of his expertise in performing the role concerned. In other words, the Respondents wanted him to perform the role because of his personal expertise and background. This can be seen from the nature of the recruitment process, which was competitive, and the report of his appointment in Farmer’s Weekly. I do not accept that the reality of the situation was, or that it was a realistic proposition that, he could simply have substituted his own personal service for that of another individual and that the Respondents would have accepted that.[88]Further there is nothing in the evidence before me to suggest that the Claimant had the absolute freedom to decline work and he did not in fact decline work over a 12 ½ year period. Indeed, he was required to work a set number of days per week.[89]Taking into account all of the above factors there was mutuality of obligation and personal service in this case. Control[90]Turning now to the second question which requires that I give consideration to the level of control that the Claimant was subject to, and whether or not that indicates that there was or was not an employer/employee relationship.[91]It is clear on the evidence before me that the Claimant had a great deal of autonomy and discretion with how and when he did his work. The only requirement was that he undertook the tasks expected of him and worked the specified minimum number of days per week.[92]He based himself from home and provided his own IT equipment but none of this is unusual in the contemporary working environment and also given the nature of his role, which required him to travel to a range of different locations and perform his role in those locations.[93]What has to be shown is that there is a genuine contractual right to control to a sufficient degree, or a framework of control.[94]It is clear from the Rules of Association that, in respect of the first Respondent, such control was vested in the Council and AGM. The Claimant reported to regular Council meetings and put forward plans and proposals at those meetings. It is clear from the minutes of meetings that it was the Council/Board who made important decisions. Further, when certain key decisions were to be made about the Claimant, the Claimant was required to leave the meeting. It is also clear on the evidence before me that whilst the Claimant had day to day control over how he achieved outcomes, his objectives and the outcomes sought were set by the 14 of 17 Council. An example of this is what is recorded in the Council meeting minutes of the 12/7/2011 when the Council considered what the main functions of the Policy Director would be in advance of the Claimant being recruited.[95]Whilst the Claimant did, at various points during the 12 ½ year period, seek to negotiate more preferential contractual terms, on the facts this is not inconsistent with a senior employee seeking to negotiate a better package. It is clear on the evidence before me that the power to decide the outcome of any such negotiations lay with the Council and was not in any way directed or determined by the Claimant.[96]Weighing all of the above factors, I find that the level of control that the Claimant was subject to was consistent with a relationship between an employer and a senior employee. Other contractual provisions/factors[97]I turn now to the third question, that is the requirement that I consider whether other provisions of contract are consistent or inconsistent with a contract of service.[98]The Claimant was registered as self-employed. He did not operate through a service company. He paid tax and national insurance on a self-employed basis. However, whilst this is a factor to be taken into account, I do not place significant weight upon it as an indicator of the nature of the contract, as I do not consider that it reflects the reality of the situation on the ground taking into account the other relevant factors that I refer to elsewhere in these reasons.[99]I accept the Claimant’s evidence that there was, from the beginning of the appointment, an expectation that he refer to himself as self-employed. His evidence was that he wanted the work and regular income and he did not consider that this issue was negotiable. I accept his evidence that the position was made plain to him from the beginning; that he was required to invoice the company on a self-employed basis. I find that the reality is that the power imbalance between him and Respondents meant that he had little negotiating power in this respect.[100]I also accept, on the basis of the Claimant’s live evidence, that he was not contracting for a range of different entities whilst undertaking his role for the Respondents.[101]I find that the nature and length of the engagement under the contract is a very weighty consideration in this case. The Claimant was not taken on for a timelimited period or project limited task. The 28 February 2012 contract is expressed as: “Shall be a minimum of six months from 1 November 2011 and continuous until terminated by means of 3 months notice given by either party” [my emphasis], the notice period later later changing to 12 months. I consider that this contract term is strongly indicative of the permanence of the relationship as is the period for which the contractual relationship lasted, that is around 12 ½ years. On the particular facts of this case, I find that these are factors that weigh strongly in favour of the relationship being one of employer /employee rather than a contract for services[102]In reality there appears to have been no real economic risks taken by Claimant, or, on the flip side, any potential for profit; he was paid a set monthly sum and that was it. 15 of 17[103]All of the contracts contain restrictive and post restrictive covenants. Whilst not determinative on their own, these restrictions upon the Claimant’s ability to undertake certain other work in the same sector do weigh against the Claimant being a self-employed contractor as they place some restrictions on other selfemployed and consultancy based work.[104]Each of the contracts contain a clause that required the Claimant to indemnify the Respondents against any claims associated with or arising from the work undertaken if it is proved to be caused by negligence. However, after three to four years, the Respondent provided the indemnity insurance concerned so I do not consider that this points heavily against the Claimant being an employee when weighed against the other factors that point towards an employer/employee relationship[105]The Claimant was paid mileage and other expenses. This is more akin to an employee/employer relationship because, ordinarily, there would be an expectation that a genuinely self-employed person would meet their own expenses.[106]The Claimant did not have a written contractual right to any disciplinary or grievance procedure but I do not consider this to be a weighty consideration because I am satisfied on the evidence before me that the clear intention of the Respondents was to present the contract as being a contract for services. In those circumstances, one would not expect such procedures to be put in place.[107]Whilst the parties categorised the relationship as self-employed, the Claimant’s say as to how the relationship was categorised was limited if he wanted the contractual relationship to continue. Despite what is now submitted on the Respondent’s behalf about employment status, it is can be seen from what was said by James Baxter and Trevor Sellers at the 15/2/2023 meeting, that the Respondent was well aware that the Claimant may well have been, in reality, an employee rather than self-employed. Conclusion on employment status[108]Considering all of the evidence before me in the round and taking into account my findings that there was mutuality of obligation, personal service, control and other relevant provisions of the contract pointing to an employer/employee relationship, I find that the reality was that there was an employee/employer relationship between the Claimant and Respondents and there existed a contract of service rather than a contract for services. Approved by: