Mr M Ter Berg v Simply Smile Manor House Ltd and others: 3334608/2018
EMPLOYMENT TRIBUNALS
Case No 3334608/2018
Between
Mr M Ter BergClaimantSimply Smile Manor House Ltd and othersRespondent
Before
Employment Judge LaidlerMr W McNerney (instructed by Counsel) for claimantDate 4 February 2026
JUDGMENT
[1]On the hearing of the Claimant’s application for interim relief under s128 Employment Rights Act 1996 (ERA) it appears to the tribunal that it is likely that on determining the complaint the tribunal will find that the reason (or if more than one the principal reason) for the dismissal is that specified in s103A ERA[2]The tribunal makes an order for the continuation of the Claimant’s contract from the effective date of termination being the 9 November 2018 until the determination or settlement of the complaint 10.2 Judgment - rule 61 February Case No: 3334608/2018[3]The Respondent is ordered to pay to the Claimant the sum of £17,627.88 for the period from the effective date of termination to the 9 February 2019[4]The Respondent is ordered to pay to the Claimant the sum of £5875.96 per month starting on 9 March 2019 and continuing on the 9th of each month until determination or settlement of the complaint.[1]This matter came before me today as an Open Preliminary Hearing pursuant to a Preliminary Hearing which took the form of a Case Management Discussion before me on 1 February 2023. At that earlier Preliminary Hearing, I listed the matter for a two day Open Preliminary Hearing to consider the following: 1.1. A determination of the remitted points sent back to the Employment Tribunal by the Employment Appeal Tribunal pursuant to HH Judge Auerbach’s decision handed down on 18 October 2022; and 1.2. Whether the Claimant’s claim should be struck out against the Second Respondent. History[2]This matter has a considerable history which I set out in some detail in the Case Management Summary produced pursuant to the Preliminary Hearing which took place on 1 February 2023. I do not propose to repeat it here.[3]It is, however, necessary to say that the Hearing before me arose as a result of a Hearing before Employment Judge Ord which took place on 24, 25 and 26 February 2020.[4]The purpose of that Hearing was to determine whether the Claimant was an employee of the First Respondent, or not. The Hearing before Judge Ord had followed a Case Management Hearing and Orders made by Employment Judge Laidler on 17 January 2019.[5]That Case Management Hearing and those Orders followed the Judgment on an Application for Interim Relief dated 17 January 2019.[6]The Claimant presented a case to this Tribunal on 5 November 2018. In it he pursues claims for unfair dismissal under s.96 of the Employment Rights Act 1996 (“ERA”), automatic unfair dismissal under s.103A ERA 1996, detriment arising out of protected disclosure under s.47B ERA 1996, a claim for holiday pay and a claim under s.92 ERA 1996 for failure to give written reasons for dismissal.[7]Judge Ord, in a Judgment sent to the parties on 26 February 2020, found that the Claimant was not an employee of the First Respondent, dismissed the Claimant’s claims in unfair dismissal and revoked the Order for Interim Relief made on 17 January 2019.[8]That decision was appealed by the Claimant and in a decision of the Employment Appeal Tribunal (EAT) before His Honour Judge Auerbach, the EAT handed down a Judgment on 18 October 2022. In a sealed Order of the EAT, it was Ordered as follows: 8.1. That ground 3 of the Appeal be allowed. Grounds 1 and 2 be dismissed. 8.2. The Employment Tribunal’s decision that the Appellant was an employee of the First Respondent be quashed. (Here I believe there is a typographical error in that the word “not” was omitted from this sentence as Judge Ord’s decision was that the Claimant was “not” an employee). 8.3. The matter be remitted to the Employment Tribunal to consider afresh the correct construction of Clause 36 of the Associates Agreement of April 2013 and the question of whether, as a matter of law, the Appellant was or was not an employee of the First Respondent, taking into account its conclusion on that question, and the findings of fact in relation to all other matters made in the Employment Tribunal’s decision. That is the subject of the present Appeal. 8.4. For the avoidance of doubt (and without limitation), for these purposes the findings in the decision of the Employment Tribunal that is the subject of the present appeal(a) as to what the parties subjectively intended should be the nature of their relationship when they signed the Associative Agreement, and(b) to the effect that the terms of Clause 36 recorded accurately what the parties in reality agreed in relation to its subsequent matter, were both findings of fact that cannot be re-opened; but (a) the correct construction and meaning of the words of Clause 36; and (b) the question of whether in the light of its correct construction and meaning, its effect was that the requirement for an obligation of personal service which is an ingredient for an employment relationship was not fulfilled, are both questions of Law which will be for fresh determination by the Employment Tribunal on remission, as part of its fresh determination of whether in light of its conclusions on them and all the other facts that have previously been found, the Appellant was, or was not, an employee. 8.5. The matters to be determined upon remission by virtue of this Order should not be determined by Employment Judge Ord or a panel of which he is a judicial member. 8.6. An expedited transcript of the Judgment given orally today be produced.[9]That is the issue that came before me today for determination as the first issue.[10]The second issue relating to the Second Respondent, I shall deal with later.[11]I had before me Counsel for the Claimant, Mr Ratledge, Counsel for the Second Respondent, Mr Wilkinson who was present only in respect of the second issue before me, and Counsel for the Third and Fourth Respondents Mr Simon Butler.[12]The First Respondent is in voluntary liquidation and was not represented.[13]Pursuant to the Orders which I gave at the Preliminary Hearing on 1 February 2023, I am grateful to Counsel for filing skeleton arguments which were helpful. I also had before me a Bundle of relevant documents running to some 239 pages and a Bundle of Authorities from the First Respondent running to some 127 pages.[14]I heard from Mr Butler on behalf of the Second and Third Respondents first of all.[15]He stressed that the issue before me was a narrow one and that His Honour Judge Auerbach confirmed that the findings in the decision of the Employment Tribunal so as to(a) what the parties subjectively intended should be the nature of their relationship when they signed the Associative Agreement and(b) the effect that the terms of Clause 36 recorded accurately what the parties in reality agreed in relation to the matter, were both findings of fact that could not be re-opened.[16]He adequately summarises the findings of fact in Judge Ord’s Judgment in his written skeleton. He refers me to the relevant Authorities, including Chitty on Contracts 34th Edition, paragraph 15-054 with respect to the guidance to be used in construing a contractual clause.[17]He asked me to conclude that the meaning of Clause 36 based on that Authority and the starting point in construing any contract being that words are given their ordinary and natural meaning, that Clause 36 has the following meaning: 17.1. Firstly, the Claimant was entitled to provide an alternate person to carry out the dental services under the Agreement; 17.2. Secondly, the Claimant was responsible for obtaining and checking references and the registration status of the locum tenens; 17.3. Thirdly, the Claimant was responsible for ensuring that the locum tenens is entered into the performance list of a primary Care Trust; 17.4. A dentist must be on the performance list in order to perform NHS dental services; 17.5. Fourthly, in the event that the Claimant is unable to utilise the facilities for a continuous period of more than 20 days, the Claimant shall use his best endeavours to make arrangements for a locum tenens to carry out the dental services; 17.6. Fifthly, the use of the words “through ill health or other cause” is illustrating by way of example the circumstances which may arise which causes the Claimant to be unable to use the facilities. 17.7. The use of the words in brackets adds only information. It does not change the meaning of the sentence or paragraph. The words have been used to provide an explanation. 17.8. The words used are not restricting the circumstances to ill health or some other cause linked to or attributable to ill health. The words were inserted in brackets to illustrate circumstances when the Claimant may be unable to use the facilities. 17.9. Clause 36 did not need to refer to ill health or other cause. However, there is nothing wrong with inserting words in brackets to illustrate what it may include. 17.10. Sixthly, the use of the words “other cause” does not mean through ill health or other similar cause. Nor does it mean that the other cause will be one that has not been chosen by the Claimant; 17.11. Seventhly, the Claimant is not prohibited from providing a locum before the 20 day period has elapsed. The Claimant is entitled to use a locum for any period. He may choose not to do so. However, if the Claimant fails to utilise the facilities for a continuous period of more than 20 days, he is required to use his best endeavours to make arrangements for the use of the facilities by a locum. 17.12. The Agreement does not restrict the appointment of a locum.[18]In short, Mr Butler attempts to persuade me that the Claimant had an unfettered right to substitute another person to perform the services under the Agreement.[19]He then helpfully refers me to the Authority of Pimlico Plumbers Limited v Smith [2017] ICR 657, and Sir Terence Etherton MR’s paragraph 84. I will revert to this paragraph later.[20]Essentially, Mr Butler asked me to draw a different conclusion as to the meaning of Clause 36 than that arrived at by His Honour Judge Auerbach. At paragraphs 79 and 80 of HH Auerbach’s Judgment in the EAT, he clearly arrives at a different conclusion as to the interpretation of Clause 36 than that arrived at by Judge Ord and that which Mr Butler asks me now to arrive at. Mr Butler tells me that I am not bound by HHJ Auerbach’s conclusion as to his disagreement with Judge Ord’s interpretation of that Clause. He says I am entitled to draw a different conclusion on construction. He said it is important for me to consider the whole contract and what was intended in the Agreement.[21]He says I am entitled to agree with Judge Ord that it was a genuine substation clause.[22]He then goes on to say, however, that if I disagree with him on that point and I adopt HH Judge Auerbach’s reasoning as to the construction of Clause 36, namely that I disagreed with Judge Ord’s construction, that is not of itself determinative of the Claimant’s status. In essence, therefore, if I conclude that there is not an unfettered right to substitution, I can still conclude on the basis of the other findings in Judge Ord’s Judgment by which I remain bound, that the Claimant was not an employee of the First[23]He asked me to look closely at the intention of the parties. He said it is very clear on Judge Ord’s findings of fact which I am not entitled to re-open, that the intention of the parties was that the Claimant be self-employed.[24]He sold the practice and entered into the agreement. He was a selfemployed Associate. He was familiar with the contract he was entering into as he himself had used it when he was principal in the practice he was at that stage selling. The bargaining position was entirely even. It was a commercial arrangement. He said it is not a case of someone being provided with an agreement that they were unfamiliar with. He intended to be self-employed. Insofar as any construction I determine, this cannot depart from the intention of the parties. They intended it at the outset and it continued to be so. He says whatever construction I applied to Clause 36, it does not change the reality on the ground and the intention of the parties was that the Claimant be self-employed. He was an independent contractor, not an employee.[25]Mr Ratledge, on behalf of the Claimant, asked me to conclude that Clause 36 does not convey either a fettered or unfettered right of substitution on the Claimant, but instead imposes duties upon the Claimant contingent upon certain events occurring for certain periods. He says the use of a locum tenens is conditional upon the Claimant’s failure to utilise the facilities for a continuous period of more than 20 days.[26]The use of a locum is also conditional upon the failure to use the facilities, being due to ill health or other cause. He adopts the reasoning of HHJ Auerbach on the interpretation of this phrase being linked to the word failure and denoting a cause that has not been chosen by the Claimant, but visited upon him.[27]He refers me to the case of Mr Anthony Rodriguez v Whitecross Dental Care Limited and Integrated Dental Holdings Limited. In that case the Tribunal considered a similar standard dental contract clause dealing with the provision of locums in deciding that the clause did not create a right of substitution, the Tribunal looked at not only the clause that the Respondent purported to give rise to a general right of substitution, but also at the other clauses within that contract and its interplay with them. He said that if that approach is taken here and Clause 36 is considered in the context of the Associate Agreement as a whole, then other Clauses such as 8, 11, 16 and 18 impose duties both towards and upon the Claimant that are incompatible with Clause 36, creating a right of substitution. He referred me in turn to those other Clauses referred to.[28]He says that when all of these points are taken together, it is clear that Clause 36 does not confer a right or substitution on the Claimant and that Clause 36 is limited. He also refers me to the Pimlico Plumbers Limited v Smith [2017] IRLR328 case, and the case of Chatfield-Roberts v Phillips UK EAT 0049/18. He refers me to the same paragraph of the Pimlico Plumbers case as Mr Butler referred me to, which is concerned with substitution clauses.[29]He goes on to say that if I accept the contentions on construction that he sets out above, then I must determine whether the Claimant was employed by the First Respondent adopting the findings of fact of Employment Judge Ord, but not his conclusions.[30]He says, therefore, I am entitled to go back to the starting point of the test in Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 2QB497. He says of that test of personal service and the test of control of another and the terms of the contract being consistent with it being a contract of service. The personal service already having been decided, he said that will leave the issues of control and contract terms. He asked me to conclude that Clause 36 does not confer a right of substitution and that the third test of the Ready Mixed Concrete test is made out.[31]On the question of intention and belief of the parties, he says that from the Autoclenz Limited v Belcher case where the wording of the contract puts legal definition in clear terms, intention is irrelevant.[32]Mr Butler comes back in submissions and said that I am confined in the remission to me to construe Clause 36 and I cannot re-open the new arguments which Mr Ratledge has asked me to do. He says control is not relevant as Judge Ord has already dealt with this in his Judgment. He refers me to paragraphs 8 – 19 of Judge Ord’s Judgment and says he has made this determination and I am bound by it, I cannot disturb those findings. He says Judge Ord finds that there was no control. Judge Ord specifies this at paragraph 98.4 in his conclusions.[33]Turning to the passage of the Pimlico Plumbers case referred to me by both Counsel.[34]The relevant passage appears at paragraph 34 of Sir Terence Etherton MR’s Judgment and is as follows: “Some of those cases are decisions of the Court of Appeal which are binding on us. Some of them are decisions of the Appeal Tribunal, which are not. In light of the cases and the language and objects of the relevant legislation I would summarise as follows the applicable principles as to the requirement for personal performance. Firstly, an unfettered right to substitute another person to do the work or perform the services, is inconsistent with an undertaking to do so personally. Secondly, a conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend upon the precise contractual arrangement and in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional. Thirdly, by way of an example a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance. Fourthly, again by way of an example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work whether or not that entails a particular procedure, will, subject to any exceptional facts be inconsistent with personal performance. Fifthly, again by way of an example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.”[35]Mr Ratledge asked me to conclude that the circumstances of Clause 36 fall neatly within the third example cited. He says there are no exceptional facts here and therefore I must conclude that such a right of substitution is consistent with personal performance.[36]Mr Butler, on the other hand, says that there are exceptional facts that I can therefore conclude that in this particular instance, even if I agree with HHJ Auerbach’s construction of Clause 36, that Clause is not consistent with personal performance due to the exceptional facts. He asked me to consider that those exceptional facts are the intention of the parties. He said it does not depart from the true intention to try and interpret that clause in that way. He said I am bound by the findings of Judge Ord in that there are exceptional facts. Judge Ord has set them out. The Law[37]My remit in this Hearing is very narrow. I am only permitted by the remission from the Employment Appeal Tribunal to enter into an exercise in which I re-visit the issue of the construction of Clause 36 of the Agreement entered into by the Claimant with the First Respondent.[38]My remit then specifies that subject to my conclusions on the construction of that clause, I have to consider whether those conclusions taken together with all other aspects of Judge Ord’s Judgment (save for his final decision) affect or alter that final decision that the Claimant was not an employee of the First Respondent.[39]As I see it, that is as far as this Hearing can go. I am bound by the terms of the Order set out by His Honour Judge Auerbach. Therefore, the law relevant to this determination is equally narrow.[40]Chitty on Contracts guides me as to the construction of Clause 36 and I am grateful to Mr Butler for directing me to the 34th Edition, paragraph 15-054 which provides the following guidance: “The Court is concerned both to identify the objective meaning of the language which the parties have chosen and to ascertain what a reasonable person would have understood the parties to have meant. It can thus be seen that the Courts are not concerned to identify the subjective understandings of the parties to the contract or the meaning which they subjectively ascribe to the term in dispute and such evidence is therefore not admissible. The Agreement must be interpreted objectively. The starting point in construing a contract is that the words are to be given their ordinary and natural meaning. Every contract is to be construed with reference to its object and the whole of its terms, and accordingly the whole context must be considered in endeavouring to interpret it, even though the immediate object of enquiry is the meaning of an isolated word or clause.”[41]Subject to my findings on the construction of Clause 36, I must then determine whether those findings taken together with the other findings in Judge Ord’s Judgment from which I cannot demure, draws me to a different conclusion on status than that reached by Judge Ord.[42]I must consider the effect of that substitution clause, subject to my construction of it, on whether it is consistent or inconsistent with personal service. That may affect my ultimate judgement on whether the Claimant was or was not an employee of the First Respondent.[43]Under s.230 of the Employment Rights Act 1996: 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.[44]I have been referred to a considerable number of Authorities, not all of which I propose to cite here. However, those that are relevant to my decision in this Judgment are as follows: 44.1. Autoclenz Limited v Belcher [2011] UK SC41 - where the Supreme Court held that for a contract of employment to exist, there had to be an irreducible and minimum obligation on each side and that a right of substitution is inconsistent with employment status. The question of whether or not the right to provide a substitute was not used was not relevant provided it was genuine. The fact that a term is not enforced does not mean that such a term is not part of the agreement. 44.2. Pimlico Plumbers Limited and Anr. v Smith [2018] UK SC29 – I have referred to this above and in particular the passage cited to me by both Mr Wilkinson and Mr Butler, being paragraph 84 of the Judgment of Sir Terence Etherton MR. 44.3. Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1967] 2QB497 – confirming three conditions which must be fulfilled for an employment relationship to exist: 44.3.1. An agreement that in consideration of a remuneration a person will provide their own work and skill in performance of some service for the other. 44.3.2. An express or implied agreement that in performance of the service he will be subject to the other’s control in a sufficient degree to make that other person “master”. 44.3.3. That the other provisions of the contract are consistent with it being a contract of service. Conclusions[45]Having carefully listened to both Counsel and taken due cognisance of the previous Judgments, I agree with the analysis of His Honour Judge Auerbach set out at paragraphs 79 and 80 of his Employment Appeal Tribunal Judgment.[46]I disagree with Mr Butler that on any sensible construction, Clause 36 in the Agreement entered into by the Claimant with the First Respondent, is an unfettered substitution clause. The words “other cause” do not mean, in my judgement, that the clause can be invoked by the Claimant in any circumstances where he merely wishes to use the facilities for such a period as fails to take on board that it contemplates that the triggering event is a failure to utilise the facilities for a defined period. “Through ill health or other cause” must be read as meaning “ill health or other similar cause”. I agree with HHJ Auerbach’s analysis that the other cause contemplated will also be one that has not been chosen by the Claimant, but has in some sense been visited upon him. If the clause was meant to be capable of applying whenever the Claimant chooses not to use the facilities for more than 20 days, it would not have referred to “ill health or other cause” at all.[47]I therefore consider that Clause 36 confers the right of substitution only when the Claimant is unable to carry out the work in those circumstances.[48]The question I then have to determine is whether that construction of Clause 36 taken together with the other findings in Judge Ord’s Judgment, with which I am not entitled to demur from, affects the final determination as to whether the Claimant was or was not an employee of the First Respondent.[49]In this respect, I am persuaded by Mr Butler. The findings of fact of Judge Ord make it clear that the intention of the parties, as was expressed by the Claimant in the giving of evidence, was always that the Claimant was other than an employee. The wording of the contract as a whole, irrespective of my construction of Clause 36, evinces this intention.[50]Judge Ord’s findings of fact by which I am bound are clear: 50.1. Prior to 1 April 2013, the Claimant had been the principal of two dental surgeries operating as a single practice. He purchased them in 1992. He also set up an additional NHS practice in Brundall. Those business interests were sold to the First Respondent in 2013. 50.2. Whilst the principal of the practices, the Claimant issued to those dentists working in the practice with him, the standard form of British Dental Association Associate Contract. He entered into a contract as an Associate Dentist with the First Respondent on 1 April 2013. 50.3. An example of the Associate Agreement as issued by the Claimant, whilst he was principal, does not differ in any material way from that which he entered into on 1 April 2013. 50.4. The Claimant accepted in his evidence in chief that when he was initially engaged by the First Respondent, he was engaged as a self-employed contractor. His case was that matters changed over time, so he “realised that the employment relationship was not one of a selfemployed contractor but more of an employer / employee” 50.5. Importantly, the Claimant accepted that when he entered into the Agreement which was not changed in any material way (other than the Claimant giving up his role as Clinical Lead which was an Addendum or Annexed to the Agreement in any event), during the course of his engagement with the First Respondent he was contracted as, intending to be, and was being engaged by the First Respondent as a self-employed contractor. 50.6. The intention of the parties when they entered into the Agreement, therefore, was as the parties both agreed, the Claimant would not be an employee of the First Respondent. 50.7. When asked by me during the course of closing submissions what had changed in the Agreement in terms of its implementation, or the parties intentions during the currency of the Agreement, Counsel for the Claimant relied solely upon the fact that the substitution / locum clause had never been used. He had accepted on the Claimant’s behalf that it was a genuine clause. The Claimant referred in his evidence to it being “untenable” when asked to explain this, the issue related not to the efficacy of practicality of the implementation of the clause but to the financial implications to him (i.e. that if he used a locum to carry out work his net income would be substantially reduced).[51]The above are extracts from the findings of fact of Judge Ord, by which I am bound.[52]At paragraph 83 of the Judgment of HHJ Auerbach, he says as follows: “I have now heard further argument from Counsel as to what should happen next. There is some measure of agreement. Firstly, both Counsel agree, rightly in my view, that the error I have identified in upholding Ground 3 (Judge Ord’s construction of Clause 36) contributed to the Tribunal’s conclusion that the personal service requirement of an employment contract is not satisfied in this case and therefore that conclusion cannot stand and that matter must be remitted to the Tribunal for fresh consideration. Counsel also agree that it is at least possible that if the Tribunal reaches a different conclusion next time on the question of whether the Agreement satisfied the requirement for personal service, that could impact on its overall conclusion as to whether the Claimant was an employee, even if all other findings in EJ Ord’s decision remain as given. Neither of them suggested that I could dispose of the matter on the basis that there can only be one right answer to those questions.”[53]He went on to say at paragraph 85: “Whilst it is common ground that if the Tribunal concludes that Clause 36 does not negate personal service, that could in turn have an impact on its conclusion on the overall question of whether the Claimant was an employee, Mr McNerney, putting his case at its highest, argued that all of those questions should be amenable to entirely fresh consideration. However, his fall back position was, in agreement with Mr Butler, that EJ Ord’s findings on all other matters could be taken as a starting point, save in relation to Clause 36, so that if the second time around it was found that the personal service requirement was not negated by that clause, the Tribunal will then need to feed that finding into the picture created by the overall findings already made by EJ Ord which should therefore stand.”[54]HHJ Auerbach goes on to say that this is the appropriate basis on which to remit and he does so.[55]I have therefore concluded that I agree with HHJ Auerbach’s construction of Clause 36. I further conclude that the limited basis of Clause 36 means that it is consistent with personal service.[56]I am bound by all other findings of Judge Ord (save for his final conclusion). I do not propose to repeat them here. However, at paragraph 98 of his Judgment in his conclusions, he says the following: “98.1 The Agreement between the parties sets out that no relationship with employer / employee is created by it. 98.2 That was the intention of the parties at the time and the parties were content to proceed on that basis. 98.3 The Claimant asserted his position as self-employed contractor on two occasions in writing and never asserted that he was an employee during the currency of his work with the Respondent. 98.4 The Claimant has not established that there was control over his work to make the Respondent his employer.[57]I am bound by those conclusions. Therefore, even applying my construction to Clause 36, the irreducible minimum in Ready Mixed Concrete is not met.[58]Moreover, turning to the limited substitution clause itself, I agree with both Counsel that Clause 36 falls fairly and squarely into the third example given by Sir Terence Etherton MR at paragraph 84 of his Judgment in Pimlico Plumbers Limited v Smith. To repeat: “Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance.”[59]However, I agree with Mr Butler that here there are exceptional facts. They are set out in Judge Ord’s findings of fact and drawn into his conclusions as I have indicated above. The true intention of the parties was reflected in the Agreement. The limited construction of Clause 36 does not defeat that true intention.[60]For the reasons I have set out above, therefore, the Claimant is not an employee of the First Respondent.[61]I would emphasise that this Judgment, along with the Judgment of Employment Judge Ord and His Honour Judge Auerbach, does not deal with and was never meant to deal with, whether the Claimant was or was not a “worker” under s.230(3) of the Employment Rights Act 1996.[62]That is something that will have to be determined at a later date in these proceedings, either in a further dedicated Preliminary Hearing or at the Full Merits Hearing of this matter. Whether the Claimant’s Claims should be Struck Out against the Second Respondent[63]This is the second aspect of the Preliminary Hearing listed before me today.[64]There was some initial speculation as to whether we could deal with this. It may be sensible to re-visit a little of the history which has led to this being before me.[65]On 21 January 2019, on the papers before her, Employment Judge Laidler concluded that the Tribunal had no jurisdiction to consider the claim against the Second Respondent and / or that the claim had no reasonable prospect of success for the following reasons: “1. The Claimant had not pleaded any allegations relating to the Second Respondent in the particulars of claim. 2. The Second Respondent does not have a contractual relationship with the Claimant. 3. The Claimant is neither an employee nor worker of the Second Respondent.”[66]She went on to Order that the claim against the Second Respondent would stand as dismissed on a date seven days after her Order unless before that date the Claimant has explained, in writing, why the claim against the Second Respondent should not be dismissed.[67]Those acting for the Claimant then wrote to the Tribunal on 22 February 2019, requesting that the Second Respondents remain a party to the proceedings until the Claimant’s employment status was determined at the Preliminary Hearing listed to do so, which was the Hearing that ultimately came before Judge Ord. They argued that if it were ultimately determined that the Claimant was not an employee or worker of the First Respondent, then the Claimant would claim that he was a worker performing services under the control of the Second Respondent. This was by way of an alternative claim.[68]Those representing the Second Respondent wrote to the Tribunal disagreeing with that argument and reminding the Tribunal that there was on the pleading, no alternative allegations or case pleaded against the Second Respondent at all. They say there is no direct contractual relationship between the Claimant and the Second Respondent. The Second Respondent commissioned the First Respondent Dental Practice to provide dental services. It is a matter for the First Respondent to employ or engage staff to provide those services. The Second Respondent is not privy to the nature of the relationship between the Claimant and the First Respondent. They go on to say that the Claimant brought the claim against the Second Respondent very much in the alternative should his claims against the First Respondent fail. They say that with respect to the Claimant there is no basis either in the email sent to the Tribunal or the ET1, for the claims to continue against the Second Respondent. Having considered these letters, Employment Judge Laidler concluded in accordance with the overriding objective that the Preliminary Hearing should proceed to determine the Claimant’s status with regard to the First Respondent and that at that Preliminary Hearing, the Second Respondent was not required to attend. She went on to say that once that decision had been given, further directions would be made with regards to the position of the Second[69]When the matter subsequently came before me, Employment Judge Ord had given his Judgment and that Judgment had been appealed and quashed on the basis of the third Ground of Appeal only.[70]The issue of the Claimant’s employment or otherwise with the First Respondent was remitted to me on the narrow point identified by HHJ Auerbach, but of course the issue of whether the Second Respondent should remain a party to the proceedings remained.[71]On 1 February 2023, I identified that as an issue to be dealt with at this Preliminary Hearing.[72]It was agreed by all parties that if I concluded on the first point before me at this Hearing, that is the remission to me from the EAT, that the Claimant was an employee of the First Respondent then the claims against the Second Respondent would fall away and claims against the Second Respondent should be dismissed. Mr Ratledge, on behalf of the Claimant agreed this.[73]However, I have not found that the Claimant is an employee of the First Respondent. The question of whether the Claimant is a worker has not at any stage yet been considered in these proceedings. It was discussed whether it should be included in the original Preliminary Hearing before Judge Ord and that was rejected.[74]Therefore we are at the situation where some years into these proceedings, only the determination of employee status has been arrived at.[75]There was an argument therefore, that the consideration of whether the Second Respondent should remain in the proceedings could not be dealt with until that issue had been determined. However, Mr Wilkinson pointed out to me that I had listed that point for determination and that he had attended in order to deal with it. He said that the question of whether the Claimant was or was not a worker was irrelevant to the issues. He said to date, some four and a half years after the ET1 was presented to this Tribunal, the situation remains the same. Namely that there was no pleaded case against the Second Respondents. He said there has been no Application to Amend to include any pleaded case against the Second Respondent. He reminded me that this issue was listed to be dealt with at this Hearing and those representing the Claimant should have attended at this Hearing prepared to deal with this issue. Yet, there has been no Application to Amend and no draft particulars put forward as to any claim against the Second Respondent. The position remained as under the original ET1, namely that the Second Respondent had simply been added as an alternative, but that there was absolutely no pleaded case against them.[76]I am persuaded by Mr Wilkinson that I therefore must consider this. The issue of whether the Claimant was or was not a worker of the First Respondent may need to be determined in due course in these proceedings, but it is irrelevant to the issue as to whether the claim should be permitted to proceed against the Second Respondent.[77]He reminds me that the Claimant has not pleaded any allegations relating to the Second Respondent in the particulars of claim. The Second Respondent does not have a contractual relationship with the Claimant. The Claimant is neither an employee or worker of the Second Respondent.[78]He said if the Claimant had wanted to advance any arguments to counter those suggestions, they have simply not done so. The purpose of today’s Hearing was to enable them to do so.[79]The only submissions in the skeleton put forward by a Mr David Flood on behalf of the Claimant, was that the status quo should remain that the Respondents remain in the proceedings until all issues as to status have been determined.[80]Mr Ratledge, today in front of me, confirms that there is no pleaded case against the Second Respondent, that there was not any contractual relationship between the Second Respondent and the Claimant and no detriment has been pleaded against the Second Respondent. He asked me, however, to consider that striking out the claim would be draconian and that such a matter should not be considered until such time as the Claimant had been given the opportunity to set out its claim by way of further particularisation of its ET1 against the Second Respondent.[81]Mr Wilkinson counters that on the basis that he says we are four and a half years down the line. There has been no Application to Amend and no attempt by the Claimant at all to advance a claim against the Second Conclusion[82]I find myself agreeing with Mr Wilkinson. This claim has been in train for four and a half years. At no stage has a claim been put against the Second Respondent in terms of the allegation of any contractual nexus between the Second Respondent and the Claimant and no detriments have been pleaded.[83]The Claimant knew that a strike out was going to be an issue to be determined at this Hearing. It was only reasonable, therefore, for the Claimant to have produced a draft amended claim to include claims against the Second Respondent. Nothing has been produced.[84]Taking into account the overriding objective as I am bound to do, it cannot be proportionate for me to allow the Second Respondents to remain in these proceedings. They continue to incur costs. Mr Wilkinson has attended at Tribunal at this Hearing specifically to deal with this point. The Claimant has given little attention to this issue.[85]Any Application to Amend would be contested strongly after such a long period of time. It cannot be in accordance with the overriding objective for me to allow this unsatisfactory situation to continue with respect to the Second Respondent.[86]On the face of the documents before me, there is no reasonable prospect of success against the Second Respondent and on that basis, combined with adherence to the overriding objective, the claims against the Second Respondent such as they are, are struck out.[87]The Second Respondent is to be removed as a Respondent to these proceedings.[88]The matter should be listed for a telephone Preliminary Hearing on the first available date to consider further the case management issues that remain in this matter. That hearing will be allowed 3 hours.
REASONS
[1]The Third and Fourth Respondents have brought an Application for costs in relation to the Claimant’s claim to have been employed by the First Respondent, (“Manor House”) and in respect of the Preliminary Hearing before me on 24 – 26 February 2020, on which date the Claimant’s contention that he was an employee of the First Respondent failed and his complaint that he had been automatically unfairly dismissed was dismissed. The Order for Interim Relief made on 17 January 2019 ceased and was revoked.[2]Manor House is now in voluntary liquidation, its rights in relation to costs have been assigned to Simply Smile UK Limited which was the sole share holder of Manor House.[3]The Application was made in writing on 11 June 2020, the Claimant replied in writing on 29 June 2020 and I have heard oral submissions from both Counsel.[4]It is right to point out that the Claimant Appealed the findings made on 26 February 2020 on three grounds. He succeeded on one, namely the question of the correct interpretation of Clause 36 of the Associate Agreement entered into between the parties, the Substitution Clause; thus the overall question of whether the Claimant was or was not an employee of Manor House.[5]That point was remitted to a different Employment Judge and at a hearing on 15 and 16 June 2023 Judge KJ Palmer found that the Substitution Clause was consistent with requirement for personal service, but that despite that the limited construction of the Substitution Clause did not serve to defeat the true intention of the parties, which was reflected in the Associate Agreement, i.e. that the Claimant was self-employed.[6]Prior to the Hearing before me, the Claimant had successfully applied for an Order for Interim Relief. On 17 January 2019 Employment Judge Laidler had concluded that it was likely that the Claimant would establish that he was an employee and that he would establish that the reason, or principal reason, for his dismissal was the making of protected disclosures.[7]In the light of all of that, can it be said that the Claimant acted unreasonably in bringing these proceedings and in particular, by pursuing the question of employee status before me? I conclude that it cannot.[8]The Claimant was considered likely to succeed on the question of employment by Judge Laidler, however he failed to establish that status before me.[9]In the Employment Appeal Tribunal Judge Auerbach felt that one aspect of the decision required consideration by a different Judge as to the interpretation of the Substitution Clause. The question was determined by Judge KJ Palmer who set out his findings, but reached overall the same conclusion as I did on the question of employment status.[10]Thus, four Judges have considered this issue and reached, to varying degrees, different conclusions.[11]In the light of all of that I cannot say that the Claimant was behaving unreasonably in pursuing the claim to the extent that it was based on employee status.[12]He had persuaded Judge Laidler that he was likely to succeed on the point and it was inevitable therefore that he could pursue that further before me, even if at that stage his arguments did not succeed.[13]For those reasons the Application is dismissed and no Order is made. 16 October 2023[1]This is a reserved judgment pursuant to a Public Preliminary Hearing heard by CVP in the Bury St Edmunds Employment Tribunal. This matter has a long history.[3]I am grateful to Counsel for the Claimant and Counsel for the third and fourth Respondent, setting out in writing, skeleton arguments which were before me.[4]The task before me today is as set out in the Order of Judge Michell, sitting alone on 27 September 2023. That is, whether the Claimant in these proceedings, had worker status. A one day time estimate was given. History of this matter[5]It is necessary that I set out in brief, what has been an extensive history in relation to this matter. The Claimant originally presented his claim to the Tribunal on 5 November 2018. In it he pursued various claims dependant upon his status as being that of an employee and/or worker.[6]Initially he pursued an injunctive claim for interim relief, which was successful until a Preliminary Hearing before EJ Ord determined that the Claimant was not an employee and the Interim Relief Order was dismissed.[7]Judge Ord’s Judgment that the Claimant was not an employee was appealed to the Employment Appeal Tribunal. EJ Ord’s judgment was dated 26 February 2020. On 4 October 2022 the Judgment of HHJ Aeurbach was handed down, overturning the decision of EJ Ord and referring the matter back to the Tribunal to reconsider the question of employee status.[8]That referred question came before me and in February 2023 I gave various directions for a Preliminary Hearing to take place to determine the issues remitted by the EAT. Those issues were aired before me on 15 and 16 March and a Judgment was sent to the parties on 19 April 2023. I determined to restore EJ Ord’s Judgment that the Claimant was not an employee.[9]Further, at that time, all claims against the second Respondent were struck out and the second Respondent was removed as a Respondent in the proceedings.[10]At no point in the process to that point in time had the Claimant’s status been examined as to whether he was a worker, merely, whether he was or was not an employee.[11]I determined that he was not an employee. That judgment was not appealed.[12]Subsequently, Judge Michell has listed this hearing before me to determine whether the Claimant was or was not a worker. The issue as to whether he was an employee, having already been determined.[13]Judge Michell has also made further Directions including listing this matter for a Full Merits Hearing on 19-27 September 2024.[14]If my conclusion in this hearing is that the Claimant is not a worker, then the remainder of his claims will fall away and will be dismissed and the Full Merits Hearing can be vacated.[15]Both the Claimant and the third and fourth Respondent are represented by Counsel at this hearing and I am grateful to them for their written submissions and their further oral submissions before me.[16]My Judgment, pursuant to the hearing on 15 and 16 March 2023, determined that the Claimant was not an employee.[17]I do not propose to repeat the contents of that judgment here. However, in essence, I agreed with HHJ Aeurbach’s conclusion that EJ Ord’s interpretation of a substitution clause in the contract entered into between the Claimant and the first Respondent was not a clause which granted an unfettered right of substitution. However, I determined that this did not affect the outcome of the determination of the Claimant’s status as an employee and I found that he was not an employee.[18]As directed and ordered by HHJ Aeurbach in his Order pursuant to the appeal, I made it clear in that judgment that I was only dealing with a very narrow issue which was that remitted back to the Tribunal by the learned Judge in the EAT. I made it clear in that judgment that I was bound by findings of EJ Ord, save in respect of his findings on the correct construction and meaning of the words of Clause 36 in the Agreement entered into by the Claimant with the first Respondent. It is worth pointing out that the first Respondent is in voluntary liquidation and has chosen not to be represented. The third and fourth Respondents are those who are represented.[19]It is important to realise that the findings of EJ Ord, save for his finding as to the construction of Clause 36, stand and it is on the basis of those findings (save for that relating to his interpretation of clause 36) that I reached my judgment on the Claimant’s status as an employee.[20]I set out some of those findings which are of relevance and importance at paragraph 50 of my judgment of 15 and 16 March 2023 and I repeat them here:20.1 Prior to the 1 April 2013 the Claimant had been the Principal of two dental surgeries, operating as a single practice. He purchased them in 1992. He also set up an additional NHS practice in Brundall. Those business interests were sold to the first Respondent in 2013.20.2 Whilst he was the Principal of the practices, the Claimant issued to those dentists working in the practice with him, the standard form of British Dental Association Associate Contracts. He then entered into a contract as an associate dentist with the first Respondent on 1 April 2013 on those terms.20.3 An example of the associate agreement as issued by the Claimant whilst he was Principal, does not differ in any material way from that which he entered into on 1 April 2013.20.4 The Claimant accepted in his Evidence in Chief, that when he was initially engaged by the first Respondent he was engaged as a selfemployed contractor. His case was that matters changed over time so he: “realised that the employment relationship was not one of a selfemployed contractor but more of an employer/employee”20.5 Importantly, the Claimant accepted that when he entered into the agreement, which was not changed in any material way (other than the Claimant giving up his role as clinical lead, which was an addendum annexed to the agreement in any event). During the course of his engagement with the first Respondent he was contracted as, and intending to be, and was being engaged by the first Respondent, as a self-employed contractor.20.6 The intension of the parties when they entered into the agreement therefore was, as the parties both agreed, the Claimant would not be an employee of the first Respondent.20.7 When asked by me during the course of closing submissions, what had changed in the agreement in terms of its implementation or the parties intentions during the currency of the agreement, Counsel for the Claimant relied solely upon the fact that the substitution/locum clause (clause 36) had never been used. He had accepted, on the Claimant’s behalf, that it was a genuine clause. The Claimant referred in his evidence to it being “untenable”. When asked to explain this, the issue related not to the efficacy of practicality of the implementation of the clause but to the financial implications to him (i.e. that if he used a locum to carry out work, his net income would be substantially reduced).[21]Those are the extracts from Judge Ord’s Judgment which I repeated in my March Judgment which I indicated in that Judgment I am bound by. I repeat that I am bound by those.[22]I refer to paragraphs 23 and 24 of my March Judgment where I referred to submissions made to me by Mr Butler, who was before me at the March hearing.[23]What he drew to my attention was that it was very clearly the intention of both parties that the Claimant entered into the agreement as a selfemployed contractor. He repeats these submissions before me in this hearing, which is a hearing to determine worker status. Paragraph 14 of his submissions he reminds me that the Claimant always confirmed in his evidence to Judge Ord that it was always his intention to be a selfemployed contractor. The Claimant sent numerous emails to the first Respondent confirming that this was the case.[24]At paragraph 56 of my March Judgment I also indicate that I am bound by EJ Ord’s conclusions at paragraph 98 of his Judgment. I set those out in four paragraphs. They are as follow:24.1 The agreement between the parties sets out that no relationship with employer/employees created by it.24.2 That was the intention of the parties at the time and the parties were content to proceed on that basis.24.3 The Claimant asserted his position as a self-employed contractor on two occasions in writing and never asserted that he was an employee during the currency of his work with the Respondent.24.4 The Claimant has not established that there was control over his work to make the Respondent his employer.[25]I indicated at paragraph 57 that I am bound by those conclusions and I go on to say at paragraph 57, that even allowing for my conclusion as to the interpretation of paragraph 36, the irreducible minimum in the Ready Mixed Concrete test is not met.[26]That conclusion at paragraph 57, both in respect of the fact that I am bound by the conclusions of Judge Ord and my further statement that the irreducible minimum test is not met, have not been the subject of an appeal.[27]It is therefore important to remember that those conclusions must be carried through into the examination and determination of the worker status issue.[28]I am not permitted to reopen those issues in arriving at a conclusion as to worker status, that would plainly be wrong. Submissions before me.[29]Mr Butler, on behalf of the third and fourth Respondents, ventures nine points by way of submission. I have those submissions in writing and do not propose to repeat them in full in this Judgment. However, he refers me to paragraph 49 of my March Judgment which, of course, relates to the Claimant’s employment status where I indicate that the findings of fact by Judge Ord, by which I am bound, make it clear that the intension of the parties, as was expressed by the Claimant in the giving of his evidence was always that the Claimant was other than an employee.[30]He reminds me that the Claimant confirmed in his evidence before Judge Ord that he was at liberty to do as he pleased. He confirmed that he did not need to work solely for the first Respondent. He was at liberty to work for other dental practices. He had a discretion whether to attend at the practice to undertake the work.[31]He reminds me that Judge Ord made it clear that pursuant to the evidence he heard, nothing changed between the parties from the initial agreement. He says the agreement is in clear and plain language and it states that the Claimant intended to be self-employed. That has not changed.[32]He refers me to the case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2QB497 and states that a contract of personal service only exists if the three stage test is met.[33]He refers me to paragraph 30 of my March Judgment where I recorded a submission made by the Claimant’s Counsel at that hearing. That submission attempted to persuade me that as a result of Clause 36, not conferring an unfettered right of substitution, it must follow that the third test was made out, namely, the contractual provisions are consistent with ordinary contracts of service. He reminds me that at paragraph 57 of my March Judgment, I rejected this and concluded that the irreducible minimum in Ready Mixed Concrete was not met.[34]He reminds me that I concluded that the first Respondent did not have a degree of control over the Claimant, the Claimant was not integrated into the business, and there was no requirement to carry out services personally. There is no mutuality of obligation. I do not accept that in my March Judgment I went as far as to say there was no requirement to carry out services personally. That is something I have to conclude today but I am bound by the findings in my March Judgment and those I have expressed I am bound by in the Judgment of EJ Ord.[35]I do, however, at paragraph 59 of my March Judgment, conclude that Clause 36 in the Claimant’s agreement, falls fairly and squarely into the third example given by Sir Terrence Etherton MR at paragraph 84 of his Judgment in Pimlico Plumbers Ltd v Smith [2018] UKSC29 where he says: “Thirdly, by way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance”[36]I conclude that I agreed with Mr Butler’s submissions on that occasion that there are exceptional facts in this case. Those exceptional facts are set out by Judge Ord in his conclusions at paragraph 98 by which I am bound. I go on to say that the limited instruction of Clause 36 does not defeat that true intention.[37]My conclusions as set out, have not been appealed.[38]Mr Butler goes on to refer me to the case of Redrow Homes (Yorkshire) Ltd v Wright [2004] EWCA Civ 469 where the Court confirmed that whether or not a person is a worker depends entirely on the terms of the contract construed in the light of the circumstances in which it was made including the parties real intention.[39]He reminds me that the role of the Tribunal is to identify the true agreement between the contracting parties. He refers me to various other Authorities including the case of Sultan-Darmon which was authority for the fact that, having concluded that a Claimant was not an employee, the Employment Judge should have used the same findings of fact and analysis to determine the question of whether he was a worker.[40]Mr Butler reminds me that my construction of Clause 36 as being on its face, consistent with personal service does not detract from the role of the Tribunal to have regard to all relevant factors to determine the question of whether a person is a worker. The Tribunal will genuinely consider issues such as control, the predominant purpose of the agreement and, to a lesser extent, subordination. He says there is no single key to unlock the words of the statute in s.230 and there has to be an analysis of all relevant factors to determine whether a person comes within the definition of worker. He reminds me that in my March Judgment I upheld Judge Ord’s conclusion that the first Respondent did not have a degree of control over the Claimant, the Claimant was not integrated into the business, and there was no requirement to carry out services personally. He says there was no mutuality of obligation.[41]He finally reminds me that the limited construction of Clause 36 cannot defeat the true intention of the contracting parties.[42]Mr Jenkins’ submissions are brief. He accepts the weakness of the Claimant’s position in respect of this Preliminary Hearing is that I used the same wording at paragraph 59 of my March Judgment “Exceptional facts”, as is used in the Pimlico Case. However, he goes on to say that when it is read as a whole, my conclusions relate to the broader issue of employee status and not the specific issue of personal service. He says this for the following reasons:42.1 He says that the finding of “exceptional facts” are essentially findings of EJ Ord relating to matters relating to employee status as a whole, including intensions. He says it is difficult to see how the use of intent, which is live in most disputes relating to worker status can be considered exceptional for the purposes of the issue of personal service.42.2 He says the findings of Judge Ord, as regards intent focused on the issue of whether the Claimant was self-employed or an employee, go well beyond the issue of personal service.42.3 Accordingly, he says that when I reference the findings of EJ Ord as regards intent and say that the limited constructions of Clause 36 does not defeat that true intention, I must be referring to the intention as regards self-employed or employee status and not the specific issue of personal service.[43]He reminds me that my March Judgment dealt with only the issue of employee status not worker status. He said I did not rule on the specific issue of personal service.[44]He suggests that my judgment did not decide the issue of personal service as I was very careful to leave the door open for further arguments as to worker status.[45]He says in the event that there have been no further substantive arguments or evidence on worker status and the point does now turn on the interpretation of Clause 36 that interpretation has been settled and accordingly the Tribunal is invited to conclude that the Claimant was required to provide personal services and is therefore a worker at the times material to this claim. I am most grateful for those submissions.
The Law
[47]The law on worker status is governed by statute and set out at paragraph 230 of the Employment Rights Act 1996. This states as follows: “(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.”[48]It is for the Tribunal to make findings of fact and then with the help of the authorities, apply those facts to the statutory test.[49]In this case, only limb (3)(b) is relevant as my March Judgment has already determined that the Claimant is not an employee.[50]So the issue here is whether there is an obligation to perform personal services.[51]Those authorities I have referred to in my March Judgment remain relevant. They include : Autoclenz Ltd v Belcher [2011] UKSC 41, Pimlico Plumbers Ltd and another v Smith [2018] UKUT UKSC29, Ready Mixed Concrete (South East) Ltd v Ministry of Pensions and National Insurance [1967] 2QB497 Redrow Homes (Yorkshire) Ltd v Wright [2004] EWCA Civ 469 which tells me that the terms of the contract entered into, in light of the parties real intensions, is cricital.[52]It is important to remember that a Court can conclude that terms in a contract, including a substitution clause is not reflective of the reality of the working relationship between the parties. That principle was set out in Autoclenz Ltd v Belcher.[53]In Town and Country Glasgow Ltd v Munro EATS 0035/18, the EAT applied the analysis of Sir Terence Etherton MR in the Pimlico Plumbers case.[54]In the case of Community Dental Centres Ltd v Sultan-Darmon [2010] IRLR1024 to which I have been referred, the EAT overturned a decision of the Employment Tribunal on the basis that there was an obvious inconsistency between the Tribunal’s conclusion that the Claimant in that case was not an employee because there was no mutuality of obligation and its subsequent conclusion that he was a worker. In the EAT’s view, the finding that there was no mutuality of obligation when considering the issue of employee status was also determinative in showing that he was not a worker. Under the contract, SD (the Claimant) was plainly entitled to decide for himself whether to turn up and provide dental services. This right did not depend solely on whether he was unable to provide services but whether he was willing to do so. Also, this was sufficient to decide the appeal in the company’s favour. The EAT also held that the Claimant’s unfetted right to appoint a substitute meant that he could not be a worker.[55]In Uber v BV and others v Aslam and others [2021] ICR657, the Supreme Court held that the determination of worker status is a question of statutory interpretation, not contractual interpretation and that it is therefore wrong in principle to treat the written agreement as a starting point. The correct approach is to consider the purpose of the legislation, which is to give protection to vulnerable individuals who are in a subordinate and dependant position in relation to a personal organisation who exercises control over their work.
Conclusions
[56]As I have indicated, the conclusions I arrived at in my March Judgment I am bound by. Those conclusions were arrived at in my March Judgment in light of binding findings in EJ Ord’s Judgment.[57]I was at great pains in my March Judgment to make it clear that the issue of whether the Claimant was a worker was not before me. It had not been before EJ Ord. My conclusions, therefore, related specifically to the Claimant’s employee status.[58]Despite the assertions of Mr Butler, I did not draw any definitive conclusion in that Judgment as to whether there was a requirement to carry out services personally or not.[59]At paragraph 49 I did make it clear that pursuant to the findings of EJ Ord, the intention of the parties was always that the Claimant was other than an employee.[60]At paragraph 57 I referred to the findings of Judge Ord at paragraph 98 of his Judgment and indicated that I was bound by those conclusions and that therefore, even applying my construction of Clause 36 (which agreed with HHJ Aeurbach, and disagreed with EJ Ord), I found that the irreducible minimum in Ready Mixed Concrete, under the test set out, was not met.[61]As to the substitution clause, I found at paragraph 58 and 59, that the clause fell within the third example given by Sir Terence Etherton MR at paragraph 84 of his Judgment in Pimlico Plumbers. I found that there were exceptional facts. The true intention of the parties was reflected in the agreement. I was bound by Judge Ord’s findings that the Claimant had not established that there was control over his work. The Claimant also asserted that his position as a self-employed contractor was clearly what was intended between the parties and had remained the same throughout the efficacy of the agreement. Those exceptional facts render Clause 36 inconsistent with personal performance.[62]Mr Jenkins argues that those cannot amount to exceptional facts. However, my March Judgment and the conclusions drawn at paragraphs 58 and 59 has not been appealed. It would be wrong for me to depart from those conclusions now. I repeat that the limited construction of Clause 36 does not defeat the true intention of the parties.[63]Applying the Autoclenz v Belcher principle, a Tribunal must look at the real arrangement between the parties rather than be a slave to the written agreement.[64]Applying the reasoning of the EAT in the case of Community Dental Centres Ltd v Sultan-Darmon, set out above, it would be inconsistent for me to find that the Claimant is a worker in light of my conclusions that there was a failure to meet the irreducible minimum in the Ready Mixed Concrete test.[65]Whilst I made no findings that there was no requirement to carry out services personally, I do so now, based on the conclusions drawn in my March Judgment.[66]There was no mutuality of obligation. The Claimant was plainly entitled to decide for himself whether to turn up and provide dental services. It was clear in his evidence before EJ Ord, set out in EJ Ord’s Judgment by which I am bound, that this was the case and accepted it. That state of affairs, which is the true state of affairs which existed between the parties is inconsistent with the suggestion that there was a requirement to carry out personal services.[67]For the reasons I have set out above, the (b) limb is not satisfied. The Claimant is not a worker.[68]His remaining claims, therefore, fall away and the full merits hearing will be vacated. His remaining claims are dismissed.
Introduction
[1]This public preliminary hearing has been listed following the remission by the Employment Appeal Tribunal on 28 February 2025. This is a long running matter and the issue which previous judges have been asked to determine concerns the Claimant’s employment status.[2]I do not consider it necessary to repeat the entire procedural history of this matter in detail one further time as that has been recorded many times, and the judgment of His Honour Judge Auerbach sets out the most up to date detailed history at paragraphs 1–16 of the appeal judgment in appeal EA-2024-000265-00.[3]It is nevertheless helpful if I record that the Claimant is a dentist who was formerly principal of a group of three dental practices, following which he sold the business to Simply Smile Manor House Limited in April 2013. The Claimant then entered into a written agreement with that company in the form of a British Dental Association Standard Associate Agreement for use in GDS Contracts. The Claimant had previously used such contracts with dentists when they worked in the dental practices he owned.[4]The Claimant filed his ET1 on 5 November 2018. Within his ET1 the Claimant complained of unfair dismissal / automatic unfair dismissal, detriment for having made protected disclosures, and he also sought to recover holiday pay. The Respondents denied the claim, arguing that the Claimant was neither an employee nor a worker. The issue of employment status is therefore key in determining whether the claim can proceed. Without being at least a worker the Tribunal will have no jurisdiction to consider the complaints at all.[5]The claim was brought against Simply Smile Manor House Limited, NHS England Midlands and East, and the current two named individuals. The claim against NHS England Midlands and East has previously been struck out. Simply Smile Manor House Limited has, in the long life of this matter, entered creditors’ voluntary liquidation in 2022, before being dissolved on 29 December 2023, and has since been removed from these proceedings by HHJ Auerbach, and is now referred to in this judgment as “the company”. The claim proceeds against Mr Malde and Dr Hancock only who were directors of the company.[6]It has already been determined in the long history of these tribunal and appeal proceedings that(i) the Claimant was not an employee, and(ii) there existed a contract requiring the Claimant’s personal service. This issue of personal service was decided in the most recent appeal decision of HHJ Auerbach on 28 February 2025.[7]This judgment therefore addresses only the final limb of the test as to whether the Claimant was a worker - specifically was the company, by virtue of the contract, a client or customer of a business undertaken by the Claimant within the meaning of s. 230(3(b) Employment Rights Act 1996?[8]In coming to my decision, I had the benefit of a bundle of documents of 769 digital pages, as well as helpful and detailed written submissions from both parties which they then supplemented orally on 3 February 2026.[9]The findings of fact made by Employment Judge Ord at the public preliminary hearing of 24 to 26 February 2020 are set out at paragraphs 8 to 46 of the judgment dated 22 April 2020. I have taken those into account but I have also kept in mind the reference to Bon Groundwork Ltd v Foster [2012] EWCA Civ 252; [2012] ICR 1027 at [4] by HHJ Auerbach in the most recent appeal in this matter at [32] which reminds me that a tribunal is only bound by findings in a previous decision involving the same parties, which were an essential part of the fact-finding or reasoning on the issue before it. I make that point because Judge Ord was tasked with deciding the issue of whether the Claimant had been an employee - that is not my task today. I am to decide if the Claimant had been a worker, and two thirds of the questions a Tribunal would normally need to determine have helpfully already been decided before today.[10]It was directed that this hearing would not hear any new evidence and I was not invited to make any new findings of fact.[11]The Respondent was today represented by Mr McCracken of counsel who adopted the written submissions prepared by Mr Butler who had appeared previously. Law[12]Section 230 Employment Rights Act 1996 provides: Employees, workers etc. … (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;[13]With respect to the part of the test for worker which I must determine, the Employment Appeal Tribunal held in Byrne Brothers (Formwork) Ltd v Baird [2002] ICR 667: “(1) We focus on the terms “[carrying on a] business undertaking” and “customer” rather than “[carrying on a] profession” or “client”. Plainly the applicants do not carry on a “profession” in the ordinary sense of the word; nor are the contractors their “clients”. (2) “[Carrying on a] business undertaking” is plainly capable of having a very wide meaning. In one sense every “self-employed” person carries on a business. But the term cannot be intended to have so wide a meaning here, because if it did the exception would wholly swallow up the substantive provision and limb (b) would be no wider than limb (a). The intention behind the regulation is plainly to create an intermediate class of protected worker, who is on the one hand not an employee but on the other hand cannot in some narrower sense be regarded as carrying on a business. (Possibly this explains the use of the rather odd formulation “business undertaking” rather than “business” tout court; but if so, the hint from the draftsman is distinctly subtle.) It is sometimes said that the effect of the exception is that the 1998 Regulations do not extend to “the genuinely self-employed”; but that is not a particularly helpful formulation since it is unclear how “genuine” self-employment is to be defined. (3) The remaining wording of limb (b) gives no real help on what are the criteria for carrying on a business undertaking in the sense intended by the Regulations— given that they cannot be the same as the criteria for distinguishing employment from self-employment. Possibly the term “customer” gives some slight indication of an arm’s-length commercial relationship—see below—but it is not clear whether it was deliberately chosen as a key word in the definition or simply as a neutral term to denote the other party to a contract with a business undertaking. (4) It seems to us that the best guidance is to be found by considering the policy behind the inclusion of limb (b). That 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 vis- …-vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. 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. (5) Drawing that distinction in any particular case will involve all or most of the same considerations as arise in drawing the distinction between a contract of service and a contract for services—but with the boundary pushed further in the putative worker’s favour. It may, for example, be relevant to assess the degree of control exercised by the putative employer, the exclusivity of the engagement and its typical duration, the method of payment, what equipment the putative worker supplies, the level of risk undertaken, etc. The basic effect of limb (b) is, so to speak, to lower the passmark, so that cases which failed to reach the mark necessary to qualify for protection as employees might nevertheless do so as workers. (6) What we are concerned with is the rights and obligations of the parties under the contract—not, as such, with what happened in practice. But what happened in practice may shed light on the contractual position: see Carmichael v National Power plc [1999] ICR 1226 , especially per Lord Hoffmann at pp 1234–1235.” [17][14]The Employment Appeal Tribunal in Cotswold Developments (Construction) Ltd v Williams [1006] IRLR 181 posed the question of whether the individual actively marketed their services to the world in general or whether they work as an integral part of the principal’s operations (the integration test): “It is clear that the statute recognises that there will be workers who are not employees, but who do undertake to do work personally for another in circumstances in which that "other" is neither a client nor customer of theirs - and thus that the definition of who is a "client" or "customer" cannot depend upon the fact that the contract is being made with someone who provides personal services but not as an employee. The distinction is not that between employee and independent contractor. The paradigm case falling within the proviso to 2(b) is that of a person working within one of the established professions: solicitor and client, barrister and client, accountant, architect etc. The paradigm case of a customer and someone working in a business undertaking of his own will perhaps be that of the customer of a shop and the shop owner, or of the customer of a tradesman such as a domestic plumber, cabinet maker or portrait painter who commercially markets services as such. Thus viewed, it seems plain that a focus upon whether the purported worker actively markets his services as an independent person to the world in general (a person who will thus have a client or customer) on the one hand, or whether he is recruited by the principal to work for that principal as an integral part of the principal's operations, will in most cases demonstrate on which side of the line a given person falls. It is not necessary for this decision to examine more closely the individual cases which may fall much closer to the dividing line, and the principles upon which those cases should be determined, because in the present case the Tribunal determined that Cotswold was not in the position of a client or customer of any profession or business undertaking carried on by the Claimant reason of "the nature of the Claimant's relationship with the Respondent" (paragraph 7.3). They did not elaborate further. However, it seems to us that they were entitled to draw that conclusion, in particular because no finding of fact suggests that the Claimant operated as an independent tradesman, and much of it is suggestive if not determinative of the fact that Cotswold recruited him to work for it. Accordingly, we reject that submission on behalf of Mr Gordon.” [53][15]The Supreme Court in Pimlico Plumbers v Smith [2018] UKSC 29 further considered the issue integration: “On the other hand, there were features of the contract which strongly militated against recognition of Pimlico as a client or customer of Mr Smith. Its tight control over him was reflected in its requirements that he should wear the branded Pimlico uniform; drive its branded van, to which Pimlico applied a tracker; carry its identity card; and closely follow the administrative instructions of its control room. The severe terms as to when and how much it was obliged to pay him, on which it relied, betrayed a grip on his economy inconsistent with his being a truly independent contractor. The contract made references to “wages”, “gross misconduct” and “dismissal”. Were these terms ill-considered lapses which shed light on its true nature? And then there was a suite of covenants restrictive of his working activities following termination.” [48][16]In James v Redcats (Brands) Ltd [2007] ICR 1006 the Employment Appeal Tribunal considered another test – the dominant purpose test and whether the Tribunal considers whether the dominant feature of the contract is the obligation to personally perform the work, which will indicate worker status, or whether the dominant feature is a particular outcome or objective, and the obligation to provide personal service is incidental or secondary: “As the italicised words at the end of the quote make clear, the dominant purpose test is really an attempt to identify the essential nature of the contract. Is it in essence to be located in the field of dependent work relationships, or is it in essence a contract between two independent business undertakings? The test does not assist in determining whether a contract is a contract of service or of services; it does not, in other words, help in discriminating between cases falling within limbs (a) and (b) of the definition of worker. Its purpose is to distinguish between the concept of worker and the independent contractor who is in business on his own account, even if only in a small way.” [59] And “This is not to suggest that a Tribunal will be in error in failing specifically to apply the "dominant purpose" or indeed any other test. The appropriate classification will in every case depend upon a careful analysis of all the elements of the relationship, as Mr Recorder Underhill pointed out in Byrne. It is a fact sensitive issue, and there is no shortcut to a considered assessment of all relevant factors. However, in some cases the application of the "dominant purpose" test may help tribunals to decide which side of the boundary a particular case lies.” [68][17]In Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005, [2013] ICR 415 this case involved a doctor who was undertaking work for the respondent which had a number of clinics, and the issue to be decided whether the claimant was a worker or was that respondent a customer of the claimant’s business. Per Kay LJ: “There is no doubt that the Employment Judge found that Dr Westwood was engaged in business on his own account. That finding informed the conclusion that he was not employed under a contract of employment. The next question is: what was that business?” [11][18]In Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32 the Supreme Court held: “37. The issue came before the Court of Appeal in Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005, [2013] ICR 415, a case which was understandably not referred to in the Court of Appeal in this case; it was argued shortly before the hearing in this case, but judgment was delivered a few days afterwards. The Hospital Medical Group argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers, the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and the Hospital Medical Group for whom he performed hair restoration surgery. The Court of Appeal considered that these were three separate businesses, quite unrelated to one another, and that he was a class (b) worker in relation to the Hospital Management Group.38. Maurice Kay LJ pointed out (at para 18) that neither the Cotswold “integration” test nor the Redcats “dominant purpose” test purported to lay down a test of general application. In his view they were wise “not to lay down a more prescriptive approach which would gloss the words of the statute”. Judge Peter Clark in the EAT had taken the view that Dr Westwood was a limb (b) worker because he had agreed to provide his services as a hair restoration surgeon exclusively to HMG, he did not offer that service to the world in general, and he was recruited by HMG to work as an integral part of its operations. That was the right approach. The fact that Dr Westwood was in business on his own account was not conclusive because the definition also required that the other party to the contract was not his client or customer and HMG was neither. Maurice Kay LJ concluded, at para 19, by declining the suggestion that the Court might give some guidance as to a more uniform approach: “I do not consider that there is a single key with which to unlock the words of the statute in every case. On the other hand, I agree with Langstaff J that his “integration” test will often be appropriate as it is here”. For what it is worth, the Supreme Court refused permission to appeal in that case.39. I agree with Maurice Kay LJ that there is “not a single key to unlock the words of the statute in every case”. There can be no substitute for applying the words of the statute to the facts of the individual case. There will be cases where that is not easy to do. But in my view they are not solved by adding some mystery ingredient of “subordination” to the concept of employee and worker. The experienced employment judges who have considered this problem have all recognised that there is no magic test other than the words of the statute themselves. As Elias J recognised in Redcats, a small business may be genuinely an independent business but be completely dependent upon and subordinate to the demands of a key customer (the position of those small factories making goods exclusively for the “St Michael” brand in the past comes to mind). Equally, as Maurice Kay recognised in Westwood, one may be a professional person with a high degree of autonomy as to how the work is performed and more than one string to one’s bow, and still be so closely integrated into the other party’s operation as to fall within the definition. As the case of the controlling shareholder in a company who is also employed as chief executive shows, one can effectively be one’s own boss and still be a “worker”. While subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker.”[19]The issue of worker status was once considered in Jivraj v Hashwani [2011] IRLR 827 the Supreme Court held that it may be helpful to consider whether the individual performs services under the direction of another in return for remuneration, or whether the individual is an independent provider of services who is not in a relationship of subordination with the person who received the services (at paragraphs 27, 34 and 39). Submissions[20]The parties provided me with written submissions before the hearing which were supplemented orally.[21]Mr Jenkins for the Claimant submits that there is no credible argument that the company was a client or customer of any profession or business undertaking carried on by the Claimant, and that the Claimant therefore satisfies the final limb of the definition of “worker” in section 230(3)(b) Employment Rights Act 1996.[22]The Claimant does not accept that he was, during the material period, engaged in business on his own account, rather he says that the Claimant is an experienced dental surgeon who formerly owned the relevant practices until their sale to the company in 2013. It is submitted that following that sale, the Claimant did not establish any new business or market his services independently, rather he continued to work in the same practice, undertaking the same clinical activities, but now within the company’s business structure and under its NHS contract. The Claimant refers specifically to paragraph 11 of the decision in Westwood where Kay LJ posed the question, if the claimant was in business on his own account, “what was that business?”. Mr Jenkins argues that there is no evidential basis for the assertion that the Claimant was operating a business to which the Respondent was a client.[23]The Claimant argues that the Associate Agreement demonstrates the company’s role as the provider of the clinical infrastructure and patient base, and it supplied the dental equipment, nursing and administrative support, materials, laboratory services, and introduced sufficient NHS patients to enable the Claimant to meet his UDA targets. The Claimant argues that these features are wholly inconsistent with a client–customer relationship and instead show the Claimant working within the company’s organised business.[24]The Claimant argues that he was integrated into the company’s operations and he places reliance on his involvement in addressing staff issues, engaging with operational problems (such as stock ordering systems and equipment procurement), and, until July 2015, holding the internal role of Clinical Lead. The Claimant says that even after relinquishing that role, he continued to contribute to matters such as staffing rotas and workplace concerns. Taken together the Claimant argues that these are strongly indicative of him being part of the Respondent’s business rather than being the operator of his own.[25]The Claimant relies further on the cases of Westwood, Williams, and Pimlico Plumbers to which I have referred above, and he argues that these cases establish that the Tribunal should consider whether the individual markets services to the world at large or is recruited to work as an integral part of the putative employer’s business. The Claimant says that the facts overwhelmingly favour the latter, and he reminds me that he was not marketing his services to others, he had no multiple clients, and that he had no business independent of the practice owned by the company.[26]The Claimant further submits that the Respondents’ case improperly relies on the mere fact that the Claimant had historically owned the practice and had a longstanding patient following. The Claimant argues that those matters are irrelevant to the statutory question, and that after the sale in 2013 the Claimant did not operate a separate business; rather he simply continued working under the company’s arrangements, with no changes as found by Judge Ord. The Claimant argues that this continuity undermines the Respondents’ assertions that he was operating independently.[27]Mr Butler for the Respondents submits that the Claimant was not a worker for the purposes of section 230(3)(b), and that the Claimant was, throughout the relevant period, engaged in business on his own account, with the company acting as a client of that business.[28]The Respondents submit that the Claimant operated an established business providing primary dental services before the involvement of the company, and that the Claimant had owned and developed the dental practice, cultivated a substantial patient following, and built a business reputation.[29]The Respondents say that that the company benefitted from the Claimant’s existing patient base, his professional expertise, and the goodwill he had created over decades.[30]The Respondents rely on the fact that the Claimant’s primary source of income derived from his longstanding patients rather than from patients newly introduced by the company, and that the relationship was therefore not one of dependency, but instead one in which the Claimant brought his own patient list and professional services to the company.[31]The Respondents argue that the Claimant’s contractual obligations were owed to his patients, who entered into contracts with him (either express or implied) directly for the provision of dental care and paid him for those services, and this independent clinical relationship between the Claimant and his patients is inconsistent with any suggestion that the Claimant was part of the company’s business structure.[32]The Respondents further argue that the Claimant accepted when he was initially engaged by the company he was engaged as a self-employed contractor, and further the agreement was not changed in any material way (save for giving up the role of clinical lead, which it says was incidental), therefore he was contracting as a self employed contractor as was intended to be.[33]The Respondents’ submissions rely on several features of the relationship which they say are consistent with genuine self-employment – namely that the Claimant chose his own working hours; he selected his annual UDA target; he provided certain equipment and materials; he bore financial risks (including liability for UDA shortfalls and for private treatment costs); and he had the ability through a genuine (though unused) substitution clause, to appoint a substitute if necessary. The Respondents argue that these demonstrate an arm’s-length commercial relationship incompatible with worker status.[34]The Respondents argue that the Claimant was not in a subordinate or dependent position, rather they say that he operated at all times with autonomy reflective of an independent professional practitioner, setting his own working pattern and conducting his clinical activities without control or supervision from the Respondents or the company.[35]The Respondents maintain that the company was a client of the Claimant’s independent dental practice and he marketed his professional expertise and services, and they argue that the company contracted for those services in a manner analogous to a traditional professional–client relationship (such as solicitor/client or consultant/client).[36]The Respondents submit that the Claimant’s later insistence that he was not running a business on his own account is inconsistent with both the documentary evidence and his conduct during the relationship. Rather, the Respondents argue, the Claimant held himself out as an independent clinician, and was not integrated into the company’s business.[37]In his oral submissions Mr Jenkins tells me that the Respondents have no answer to the vital question, if the Claimant is a business, what then is that business? Mr Jenkins also points out what he says is an inconsistency in the Respondents’ arguments – if the Claimant was contracting direct with the patients as they alleged, then what service was it that he was providing to the company?[38]Mr Jenkins says the reality is that the company was a provider of dental services, the Claimant was a dentist who worked for them and it is akin to any business, for example an accountant working for an accountancy firm – that accountant may provide services direct to clients but they are the firm’s clients.[39]Mr Jenkins disagrees with Mr Butler’s submissions and argues the Claimant was not paid directly by the clients, rather they paid the company and he says there is no evidence that there was an implied or an express contract between the Claimant and the clients as the Respondents suggest.[40]Mr Jenkins refers me to the Associate Agreement at clause 31(i) onwards which provides that even the private patient fees were paid to the company. I am further referred to the preamble to that Agreement which provides that it was the company had the General Dental Services contract with the NHS – the Claimant did not do so, rather he needed (and was dependant upon) the company for that and there was no evidence at all of any private contract(s) between the Claimant and others. Mr Jenkins refers to the private patients and agrees that many of them may have previously known the Claimant but that legally it made no difference to him – they were registered with the practice – not the Claimant.[41]Mr Jenkins tells me that the Respondents’ submissions repeatedly refer to the Claimant as operating at arm’s length and that he was independent, he therefore asks what then is that service he is providing to the company, and what business is it that the company was a client of?[42]Mr Jenkins addressed the Respondents’ argument that the Claimant marketed himself as an independent dental practitioner and was well known with a dedicated following of patients, and that he had owned the practice and spent many years marketing and developing it. Mr Jenkins says there is no evidence the Claimant had been marketing himself, it was true that he had previously marketed the practice but he then sold it; the work is still of that practice; and patients are registered with the practice not the Claimant. Mr Jenkins tells me that there was no shift in marketing or patient registrations post sale of the practice to the company.[43]Whereas the Respondents had said that the company benefited from the Claimant’s business acumen, knowledge, patient list, and following, Mr Jenkins asks the question in relation to what, and what then do they say is the Claimant’s business?[44]The Respondents have argued that the Associate Agreement “may have mentioned” the company introducing NHS patients, the patients were already the Claimant’s and entered into either implied or express contracts with him, and the Claimant agreed to provide care and in return the patients agreed to pay fees establishing an independent legal relationship. Mr Jenkins repeats that the company introduced the patients, they were legally patients of the practice, and the Claimant did not enter into any contracts express or implied with the patients, and he reminds me that the Respondents do not attempt to explain how these implied contracts are said to have come into existence.[45]Although the Respondents had argued that the Claimant was not reliant upon the company for the provision of dental services or access to patients, Mr Jenkins tells me, again, that the patients were registered at the practice, and it was largely irrelevant that these had been the Claimant’s patients beforehand.[46]The Respondents had argued in their submissions that the Claimant was not in a subordinate or dependent position (akin to that of an employee), and functioned as an arms length, independent contractor. Mr Jenkins tells me this is incorrect, the company granted a licence and provided access to its staff, to its equipment, and to its premises.[47]Finally Mr Jenkins points out that the Respondents argue that the patients had entered into (express or implied) contracts with the Claimant on the one hand, however the Associate Agreement contains a number of restrictive covenants, including clause 45(a)(iii) which purports to limit the Claimant from soliciting patients of the company for a period of up to three years after the agreement ends. Mr Jenkins asks the question of how this sits alongside the Respondents’ arguments that the patients were already in some form of implied or express contract with the Claimant, and how therefore could the company lay claim to the patients in such a case?[48]Finally Mr Jenkins refers me to the preamble of the Associate Agreement which confirms that the practice owner (the company) carries on the practice of dentistry at the premises, and wishes to introduce patients to the Associate (the Claimant) and to make available to him equipment and services in connection with the practice of dentistry at the premises, and that it is the company which will hold the General Dental Services Contract, and that the Claimant is recorded as a Performed engaged by the Practice Owner to provide services under that agreement and privately.[49]Mr McCracken replied briefly to restate that he adopts the submissions of Mr Butler who prepared them but who did not appear today, and that the reality was that the Claimant was self employed, he had set up the business running it for years and his reputation was known. As to the question repeatedly posed about what is the business, Mr McCracken tells me that the Claimant was the business, and it was just by his being, and being in existence, which was the service supplied. I took that to mean the Claimant’s continued connection or association with the practice is what was being relied upon here.[50]I queried the references in the Respondents’ submissions to the decisions in Groom v Maritime and Coastguard Agency [2024] EAT 71, and also Johnson v Transopco UK Ltd [2022] ICR 691. The reason for my question is that it was not immediately clear what the relevance was for the legal issue before me today. Mr McCracken confirmed that these were not being advanced. Whereas reference was also made to MacAliden (training as Charm Offensive) v Lavaroz UKEAT/0453/13/JOJ, it appeared to me that the same points had already been made by the Court of Appeal in Williams, already referred to above, to which Mr McCracken helpfully agreed with me.[51]I allowed Mr Jenkins to have the final word, and he told me that bringing a benefit is not the same as supplying services. Conclusion and decision[52]I remind myself of the sole issue for determination today set out at the final sentence of paragraph 55 of the appeal decision of HHJ Auerbach of 28 February 2025 which is as follows: “The question of whether the Claimant was or was not a worker now turns entirely on what I have called the third limb of the statutory test, that is, whether the company was, by virtue of the contract between them, a client or customer of any profession or business undertaking carried on by the Claimant.”[53]I adopt and rely upon the unchallenged findings of fact already made in these proceedings by Judge Ord which were not disturbed upon appeal. I draw my own conclusions as to the application of those facts to the legal issues in this case.[54]I will start with the question posed by Kay LJ in Westwood, raised a number of times confidently by Mr Jenkins in this hearing, if as the Respondents say the Claimant was in business on his own account, what then was that business? The response from Mr McCracken for the Respondents, that the Claimant was “just by his being” or “being in existence” was not a persuasive one and did not resolve the question that I must grapple with.[55]Looking at the unchallenged facts, the Claimant did not set up a new business after April 2013 and there is no evidence that he marketed himself to the public, nor that he had other clients (or patients beyond those of the company). The Claimant continued to work at the same premises as before as an Associate under the Associate Agreement, but now under the company’s structure. That agreement provided the Claimant licence to use the premises, it provided him with equipment, staff and laboratory services, and it required the company to introduce sufficient NHS patients to him so that he could meet his annual UDA commitment. Contrary to the Respondents’ submissions, I am satisfied that the patients paid the company not the Claimant.[56]To answer the question therefore posed in Westwood, there was no business. In my determination, the Claimant was not providing dental services to the company as if it were a commercial customer of his, rather he performed dental work within the company’s business, utilising its infrastructure, its resources, its staff and serving its patients. On the issue of whose clients the patients were – it was clear from the restrictive covenant at clause 45(a)(iii) that these were the clients of the company, not the Claimant.[57]I will now examine the issue of integration into the company’s business. From the material before me it is clear that the Claimant worked exclusively at the practice; the Claimant utilised the premises, the equipment, the staff and infrastructure; the Claimant could be introduced to NHS premises by the company; the Claimant was subjected to the company’s policies and clinical governance; the Claimant attended staff meetings and up to July 2015 he acted as clinical lead; and the Claimant corresponded on internal operational matters such as staffing or rotas, equipment and also complaints.[58]Rather than operating at arm’s length, as the Respondents argue, I determine that the Claimant was fully integrated into the company’s business.[59]As regards the issue of control of the business environment, I recognise that the Claimant had a degree of flexibility in that he could select his preferred working day and the number of UDAs he wished to deliver, although this was subject to the formula for compensating the company if there was a shortfall in the number of UDAs he carried out, and this in turn created some level of financial risk to the Claimant.[60]However, I further recognise that it was the company which provided the patient list; the company controlled fees and billing; and the company controlled the facilities and staffing. In addition the company also set clinical governance expectations and it also imposed policies and procedures which applied to staff, including the Claimant. It was clear to me that the Claimant was dependent upon the company holding that GDS contract. It appears to me, taking all these factors into account, and having weighed up the Claimant’s limited autonomy, that the Claimant was deeply integrated into the company’s business and that he was dependent upon that business and its infrastructure.[61]I do not find that the Claimant’s previous ownership of the practice has any particular relevance to the decision I am required to make today. I am also not minded that the Claimant’s limited autonomy was sufficient to preclude him from being a worker. Likewise the limited amount of financial risk to the Claimant was also, either in isolation or in conjunction with the autonomy, not sufficient in my view to preclude worker status.[62]The Respondents have referred to the ability to send a substitute under the Associate Agreement. As per James I am required to consider whether the dominant feature of the contract was the obligation to personally perform the work (which will indicate worker status), or whether the dominant feature is a particular outcome or objective, and the obligation to provide personal service is incidental or secondary. I note that the Employment Appeal Tribunal has already determined that the requirement for personal service has been met in this case. It therefore follows that I find that the dominant purpose here was for the Claimant to provide personal service to the patients.[63]I have taken a holistic view of the reality of the relationship, and I am persuaded that given the Claimant was deeply integrated into the business; he was not in business with the company on his own account; he was dependent upon the company; the Claimant was required to provide personal service; and there was a significant amount of control over him by the company.[64]In answer to the question that I am to resolve today, I find that the company was not a client or customer of any profession or business undertaking carried on by the Claimant. Accordingly, I find that the Claimant was a worker.[65]The matter will proceed to a final hearing already listed for 26, 27, 28, 29 and 30 April 2027. Whereas Mr Jenkins has invited me to issue case management directions without the need for a further preliminary hearing, I am minded that a two hour private preliminary for case management by video is required. I shall so direct a hearing to be listed at the earliest opportunity.[66]I thank Mr Jenkins, Mr McCracken, and Mr Butler for their assistance. Approved by: