A Niepel v R Thompson and G Smith [As trustees for and on behalf of the members of the Hale Lawn Tennis Club]: 6003247/2024 and 6004278/2024
EMPLOYMENT TRIBUNALS
Case No 6003247/2024, 6004278/2024
Between
A NiepelClaimantR Thompson and G SmithRespondent
Before
Employment Judge BattenE Walker (instructed by Counsel) for respondentDate 26 June 2025
JUDGMENT
[1]the claimant was not an employee of the respondent club;[2]the claimant was a contract worker within the meaning of section 41 of the Equality Act 2010;[3]Neither Mark Furness or James Anderson were employees of the respondent club;[4]Giles Chesher was also not an employee of the respondent club. He was, at the material time, the club’s President and a member of the respondent club.
REASONS
[1]On 3 June 2024, the claimant presented a claim comprising complaints of sex discrimination (direct discrimination, harassment and victimisation), breach of contract, unpaid wages and a failure to provide itemised payslips. On 19 June 2024, the claimant presented a second claim, in the name of AN Tennis Coaching Limited, albeit that the company has since been removed as a claimant and replaced with the claimant above. Case Nos. 6003247/2024 6004278/2024 2[2]On 29 November 2024, there was a case management preliminary hearing before Employment Judge Mark Butler at which the complaint of breach of contract was withdrawn. It was decided to list this public preliminary hearing to determine issues of jurisdiction as follows:a. Was the claimant an employee of the respondent, pursuant to s.83 of the Equality Act 2010 (“EqA”)?b. Was the claimant a contract-worker, pursuant to s.41 EqA?c. Did the respondent employ any of Mark Furness, James Anderson and Giles Chesher, for which it could be vicariously liable for acts of discrimination, pursuant to s.109 EqA?
Evidence
[3]The Tribunal was provided with 3 bundles of documents, being an agreed primary bundle of 424 pages of documents, an agreed secondary bundle of 246 pages and an ‘exhibit bundle’ prepared by the claimant, to be read in conjunction with her witness statement, of 32 pages.[4]The claimant gave evidence from a written witness statement and was subject to cross-examination. The respondent tendered witness statements from a number of persons as follows: Adrian Cartwright-Bain, former Treasurer of the respondent club; Giles Chesher, President of the club; James Anderson, tennis coach; Louise Gerald, former Treasurer of the club; Mark Furness, acting Head Coach; Mary Timothy, committee member; Nicholas Gill, club member; and Susan Brown, committee member. Of these, Giles Chesher, Mark Furness and Susan Brown gave oral evidence to the preliminary hearing and were subject to cross-examination. James Anderson and Mary Timothy confirmed their witness statements under oath but were not cross examined.[5]Although listed for one day, this preliminary hearing took 2 days to hear all the evidence and reach a decision, mainly because the witness evidence took up the whole of the first day, with the Tribunal sitting until after 5.00pm. On the second hearing day, the Tribunal received submissions from both parties before reaching its decision on each of the preliminary issues. Findings of fact relevant to the preliminary issues[6]Having considered all the evidence, the Tribunal made the following relevant findings of fact. Where a conflict of evidence arose, the Tribunal resolved the same on the balance of probabilities, in accordance with the following findings:[7]The claimant works as a tennis coach. She was recruited by Mr Furness, the Head Coach, acting on behalf of the respondent club, to work at the club from 15 February 2021. Mr Furness recruited the claimant initially as Assistant Head Coach, with a view to her replacing him as Head Coach when he retired. Mr Furness was said to be on a 2-year run-down period to retirement. Case Nos. 6003247/2024 6004278/2024 3[8]The claimant was also the first of 2 women coaches appointed at the time. Somewhat surprisingly, the Tribunal was told that the club had never engaged a female tennis coach before 2021.[9]At the time of her engagement, the claimant drew up a letter, dated 15 February 2021, which appears in the bundle at page 111. The letter is signed by the claimant and Mark Furness. In the letter, the claimant describes her position to be “providing tennis coaching services” and states that “My position is self-employed”.[10]From the start in February 2021, the claimant undertook most of the day-to-day jobs of Head Coach, including oversight of the respondent’s coaching programme, even though she had the title of Assistant Head Coach for the first 18 months. The claimant ran the respondent’s tennis programme which was financed on a set hourly rate. However, the claimant was at all times free to coach or not as she chose, and the respondent was under no obligation to provide any work.[11]Approximately 18 months after commencing work for the respondent, in October 2022, the claimant set up a limited company, ‘AN Tennis Coaching Limited’, through which she operated. The claimant was the personality of the company. The Tribunal considered that such corporate arrangements are not unusual where an individual contracts to provide their services. The individual is effectively employed by the company and provide their services through the company which supplies them to a principal.[12]At all times, when the claimant worked, she wore the respondent’s kit, with the club’s name and logo on it. Whilst the claimant worked mainly at the club premises, she also went out to schools. In so doing, she wore the respondent’s uniform. Outwardly the claimant presented as a member of the respondent’s personnel. The claimant used some of the respondent’s equipment and some of her own equipment. In due course, the claimant appeared on the respondent’s website and was held out as Head Coach.[13]The Tribunal examined the issue of substitution and found that, in the claimant’s case, once Mr Furness retired, substitution of the duties of Head Coach never happened in practice. The claimant worked under the title of Head Coach, and she was contacted about the coaching programmes including whilst she was on holidays or off work. Through the existence of the claimant’s service company, the Tribunal considered that it was the claimant personally who was expected to be available at all times for Head Coach duties. That is in contrast to the other tennis coaches who could send cover or a substitute. Ordinarily, coaching of sessions and cover for absence would be arranged by the claimant from a pool of coaches already engaged to work at the respondent. Membership of the pool of coaches was agreed with the respondent, especially for group lessons. The respondent was very strict about who coached under its programmes, largely to ensure that the requirements of safeguarding and insurance policies were met.[14]In practice, the claimant was contracted to and worked only at the respondent club. The claimant’s evidence, which the Tribunal accepted was that she understood that, if she had gone to work at another tennis club whilst she was coaching at the Case Nos. 6003247/2024 6004278/2024 4 respondent, she expected that issues would have been raised, so she chose not to do so. For convenience, the claimant conducted her private lessons at the club.[15]The claimant’s witness statement, at paragraph 9, says that she did not take over the financial benefits associated with being Head Coach until 1 September 2023 whereafter she gained, “the financial benefits … from the coaching programme and camps”. As official Head Coach, the claimant kept what was described as the “net profits” from that programme, the word “net” meaning all monies collected in, after deduction of the respondent’s low-level fees for use of facilities. She also undertook individual members’ tennis lessons, with £1 per lesson being paid to the respondent for use of its facilities. The Tribunal found that the claimant also did an amount of free work for the respondent’s benefit.[16]Bookings for the respondent’s tennis programme, and payments received for such were collected through the Lawn Tennis Association booking system, called Clubspark. The claimant had access to the system. The booking system paid the claimant direct, after a deduction of court fees, at £1 per court per hour. The claimant did not pay monies to the respondent; rather, the respondent‘s court and/or other fees were deducted before the Clubspark system paid the claimant. Mr Furness’ evidence, in his witness statement at paragraph 10, was that the respondent introduced court fees for all coaching sessions.[17]Individual tennis coaches sent invoices to the claimant for the work they had done, and the claimant paid the coaches from the monies she received through the Clubspark system. Examples of Mr Anderson’s invoices appear at pages 374 and 377 of the main bundle.[18]Following the letter mentioned in paragraph 9 above, no written contract or terms of engagement were ever concluded between the claimant and the respondent. However, there had been extensive discussions and proposed documentation was circulated.[19]In early 2023, draft contractual documentation was created. It appears in the bundle. The drafts disclosed refer to the claimant, and also to the claimant’s company, ‘AN Tennis Coaching Limited’, as parties to the proposed contract(s). An example of such appears in the bundle at page 177. There was, however, no evidence to suggest that the respondent’s engagement of the claimant changed in any way because she had set up a limited company. However, the respondent began to reference the claimant’s company in its correspondence and draft contractual documentation, alongside the claimant personally, from that time onwards. The Tribunal found that the respondent understood that the claimant was choosing to operate through a company for tax purposes, and they accepted the situation going forward as that the claimant was engaged through her company.[20]In 2023, discussions also commenced about the claimant’s transition to become Head Coach upon Mr Furness’ retirement. There were a number of e-mails between Mr Chesher and the claimant about a transition plan, including a draft contract containing proposals for coaching to be undertaken at new rates. The emails appear in the bundle, at pages 190 and 191. Administrative fees were also proposed to be payable to the respondent - in evidence this was described as a levy. The claimant Case Nos. 6003247/2024 6004278/2024 5 told the Tribunal that she was expecting some form of ‘Service Level Agreement’ at the time albeit that such was never arrived at nor were terms agreed.[21]On 21 March 2024, without warning, the respondent suspended the claimant from the position of Head Coach. The claimant was given notice terminating arrangements between her and the respondent and her access to the Clubspark bookings and accounts system was removed. The respondent had an internal discussion about the claimant being put on ‘gardening leave’ but eventually the claimant was told not to work her notice. Originally, the claimant was to be allowed to continue her private lessons from an allocated court. However, when the claimant delivered a sick note, on 25 March 2024, the respondent’s officers decided that it was inappropriate for the claimant to attend the club premises any further.
The applicable law
[22]A concise statement of the applicable law is as follows. Employee status[23]A definition of employment is found in EqA section 83(2)(a) as: “Employment under a contract of employment, a contract of apprenticeship or a contract personally to do work”. Contract worker[24]Section 41 EqA provides that a principal must not discriminate against a contract worker. Section 41(7) EqA defines a ‘contract worker’ as: “an individual supplied to a principal [by another person] in furtherance of a contract” and by virtue of section 41(5)(b) EqA, the individual must be “supplied by that other person in furtherance of a contract to which the principal is a party (whether or not that other person is a party to it)”.[25]The EHRC Code of Practice on Employment (2011), at section 11.6, states that the contract worker must work wholly or partly for the principal, even if they also work for their employer, but they do not need to be under the managerial power or control of the principal, also known as an ‘end-user’. Factors to be taken into account[26]In O’Kelly & others v Trusthouse Forte plc [1983] ICR 728 CA Sir John Donaldson confirmed that, in approaching the question of whether a claimant is an employee or worker, or otherwise, a Tribunal must “consider all aspects of the relationship, no single factor being in itself decisive and each of which may vary in weight and direction, and having given such balance to the factors as seems appropriate, to determine whether the person was carrying on business on his own account”. Case Nos. 6003247/2024 6004278/2024 6[27]The Tribunal must therefore consider all relevant factors in the relationship between the parties, including the degree of control exercised by the respondent over the claimant (for example: whether the claimant was under a duty to obey orders; who had control over working hours; supervision; the mode of working; and who provided any equipment). However, the Tribunal should take note of the fact that many employees, by virtue of their skill and expertise, may be subject to very little control. The Tribunal must also take account of organisational matters, such as the degree to which an individual is integrated into the employer’s organisation, whether there is an existing disciplinary procedure which is applicable to the individual and whether the individual is included in any schemes such as for occupational benefits. The Tribunal must also have regard to the economic reality of the relationship between the parties and whether the claimant can be said to be in business on her own account or whether she worked for another who takes the ultimate risk of loss or profit.[28]Other factors to be considered by the Tribunal include: whether there was a requirement for personal performance or whether the claimant could send a substitute or sub-contract the work; whether there was mutuality of obligation between the parties such as an obligation on the employer to provide work and on the employee to do it; and the Tribunal must also consider whether there were any other factors consistent with the existence of an employment relationship.[29]This multi-factorial approach has been confirmed in Autoclenz v Belcher [20110 ICR 934 SC and in Uber v Aslam [2021] UKSC 5. The label attached by the parties to the contract in question is not decisive and will not trump evidence of the reality of the situation. In applying the statutory language, it is necessary for the Tribunal to view the facts realistically, taking into account the relative bargaining power of the parties, to determine the parties’ true agreement by examining all the circumstances of the case.[30]An individual who does not meet the threshold necessary to qualify for employee status may nevertheless enjoy a more limited degree of statutory protection as a worker. The status of ‘worker’ is a creation of statute, reflecting the policy that some basic employment rights should not be confined to those working under a contract of employment. As Lady Hale explained in Bates van Winkelhof v Clyde and Co LLP and another [2014 ICR 730 SC, ‘workers’ make up an ‘intermediate class’: they fall in between, on the one hand, ‘employees’ who are employed under a contract of employment (and who are entitled to the full set of employment rights) and, on the other hand, self-employed independent contractors who run a business on their own account for clients or customers (and who are mostly outside the scope of employment law). Liability of employers and principals[31]Section 109(1) EqA provides that an employer is liable for the actions of its employees in the course of employment. Case Nos. 6003247/2024 6004278/2024 7[32]Section 109(2) EqA provides that anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.[33]In the course of submissions, the Tribunal was referred a number of cases by the parties, as follows: Ready Mix Concrete v Minister of Pensions [1968] 2QB 497 Lister v Hesley Hall Ltd [2001] UKHL 22 Yearwood v Commissioner of Police of the Metropolis [2004] ICR 1660 Nazir and another v Asim and another UKEAT/0332/09 UK Mail v Creasey [2012] UKEAT/0195/12 Kemeh v Ministry of Defence [2014] EWCA Civ 91 Secretary of State for Justice v Windle [2016] EWCA Civ 459 Pimlico Plumbers Ltd v Smith [2017] IRLR 323 Unite the Union v Nailard [2018] EWCA Civ 1203 Shini v David Lloyd and others ET 3303419/2020 Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15 Boohene and others v The Royal Parks Ltd [2024] EWCA Civ 583 Anderson v CAE Crewing Services Ltd [2024] EAT 78 The Tribunal took these cases as guidance but not in substitution for the statutory provisions. Conclusions (including where appropriate any further findings of fact)[34]The Tribunal has applied its relevant findings of fact and the applicable law to determine the preliminary issue in the following way.[35]The Tribunal found that, unlike the ordinary tennis coaches, there was no right of substitution in respect of the Head Coach role/duties. The claimant fulfilled that role personally and was not able to delegate her Head Coach duties. In contrast, the claimant’s tennis lessons could be given to other coaches to run in her absence.[36]As Head coach, the claimant was responsible for the delivery of the respondent’s advertised tennis coaching programmes. The Tribunal found that the respondent expected a level of availability of the claimant, and the respondent’s officers contacted the claimant about the coaching programme regardless of whether the claimant might be said to be ‘at work’ or not. Thereafter, the claimant organised the other coaches, decided on the staffing by arranging who worked and when, and she sorted out cover between the coaches and cover for sickness and holidays. To all intents and purposes, the claimant ran the tennis programmes as she saw fit.[37]The claimant also conducted lessons for the respondent’s members as and when required by individual members. The claimant’s private lessons were promoted on the respondent’s website, such that the claimant did not undertake other advertising or promotion of her activities. She did not need to do so as she was very busy in any event. Ultimately the claimant decided when she undertook coaching or not and who Case Nos. 6003247/2024 6004278/2024 8 for within the context of the respondent’s programmes and also by her private lessons.[38]The claimant wore the respondent’s kit, as did all the coaches and ordinarily used the respondent’s courts for her lessons, except when the respondent’s coaching programme took place on school premises during school holidays. Whilst the respondent had no control over the content of individual lessons, the broad timings, the numbers on the schools’ programme and on the Lawn Tennis Association Leader’s Programme were largely determined by the respondent.[39]When the claimant’s position as Head Coach was terminated, the respondent gave notice and dictated that the claimant be placed on gardening leave. It refused the claimant’s request to use the respondent’s courts to continue private lessons during the notice period. In addition, the claimant was locked out of the financial system even though money was owed to the claimant. There had been no opportunity for the claimant to substitute a Head Coach whilst she was off sick leading to her suspension. The respondent effectively took back control of the coaching programmes once the claimant was suspended.[40]Ms Brown said in evidence that the respondent wanted to ensure that the respondent’s “vision” was delivered and that the claimant was to be in effect an ambassador for the club. Ms Timothy, in her witness statement, commented on the fact that the claimant needed to act in accordance with the respondent’s policies and procedures, with much emphasis on safeguarding requirements dictated by the fact that the respondent’s coaching programmes delivered many lessons for children. The claimant therefore attended committee meetings and was accountable for the tennis programmes, to the respondent’s committee. In those circumstances, the Tribunal found that the respondent delegated the running of the coaching programmes to the claimant as Head Coach and retained ultimate control over who delivered the programme as Head Coach. That is a different position to that of the individual coaches whom the Tribunal considered to be entirely independent, self-employed and outside of the effective control of the respondent beyond the issue of approval to work on the coaching programmes.[41]Importantly, when the claimant incorporated her activities under a company, the respondent was at all times aware of this change in status. The respondent proceeded to draft a contract which including the company’s name and the Tribunal found that the respondent intended to continue to contract with the claimant from that point via the claimant’s company, through which she then chose to operate. The Tribunal considered that the draft contractual documentation, albeit not signed, demonstrates an intention by the respondent, through Mr Chesher, to contract with the claimant in that way. This was because the claimant was the personality of the company, and the respondent understood that it obtained her services through that corporate vehicle. It may have been that the claimant set up herself in a company for tax purposes but, to put such an intention into effect, the claimant was contracting through her company with the respondent, which understood that they were getting the services of the claimant though her company. Case Nos. 6003247/2024 6004278/2024 9[42]The Tribunal considered the case of Shini v David Lloyd and others ET 3303419/2020, a first instance decision and so no binding, which was relied upon by the claimant. The Tribunal has distinguished it: In Shini, the claimant was found not to be an employee, but the case did not deal with contract worker status under EqA; The claimant in Shini was paid directly by the members who had lessons and the claimant paid nothing to the respondent (paragraph 7 of the Judgment); Mr Shini was one of a pool of coaches, as was the claimant when she first started working for the respondent and before she became Head Coach, which position put the claimant in charge of the pool; Mr Shini’s bookings were made direct to his diary (paragraph 14 of the Judgment); coaches then arranged everything directly with the lesson recipient – in contrast, there is no evidence of a direct contract between Ms Niepel and the prospective pupils for lessons.[43]In any event, the Tribunal considered that the introduction of and existence of the claimant’s company was a significant matter in determining the nature of the relationship between the parties at the material time, for the following reasons.[44]Section 83(2) EqA references employment under a contract of employment, a contract of apprenticeship or a contract personally to do work. An employee is an individual who has entered into or works under a contract of employment. Section 41 EqA defines ‘contract worker’ as arising in a situation where a principal or end-user (here the respondent club) makes work available for an individual, or for an individual who is employed by another person (here the claimant’s company) and supplied by that other person to the principal, in furtherance of a contract. The contract worker must work wholly or partly for the principal, even if they also work for their employer, and they do not need to be under the managerial control of the principal, also known as the ‘end-user’.[45]The Tribunal considered that the claimant’s position had changed over her time working for the respondent club. At first, and before the claimant incorporated her services under ‘AN Tennis Coaching Limited’, she described herself as self-employed and could be said to have fulfilled the wide definition of employee under section 83 EqA. However, by the end of the relationship with the respondent, the claimant’s position is aligned with section 41 EqA. She was contracting through her company, a position that has been made clear and was understood by the respondent. In those circumstances, the Tribunal fond that the claimant had changed to being a contract worker through the vehicle of her company, which employed the claimant in law and provided the claimant’s services to the respondent. The purpose of the company is to deliver the claimant and her tennis coaching services. This is not an unusual arrangement for a company where somebody is the personality, the sole director and shareholder, and the company exists for the purpose of providing that person’s services.[46]The Tribunal has found that the claimant was employed by her company, and she was supplied, as a contract worker, to the respondent. The claimant did not contract directly with the respondent after the company was formed and/or after 2023, at which time paperwork was drawn up to reflect that position, albeit never concluded due to issues around remuneration. Case Nos. 6003247/2024 6004278/2024 10[47]The claimant has made much of how the previous Head Coach had operated. The Tribunal considered that this matters not. In any event, the Tribunal found that Mr Furness operated in a self-employed capacity as Head Coach. He had a direct relationship with the respondent which was one of self-employment. There was no company involved.[48]The Tribunal concluded from the evidence before it that Mr Anderson was a self-employed tennis coach, and he was invoicing the Head Coach for his services which were provided as and when required.[49]The Tribunal considered that Mr Chesher was in an entirely different position to the other respondents. He is not an employee of the respondent. However, he is a member of the club’s committee and also the club President. The respondent is an unincorporated association of its members. Therefore, Mr Chesher is one of the respondents, by virtue of his membership of the organisation at the material time. In respect of Mr Chesher’s position, the Tribunal also heard submissions that somehow the club, as an organisation, could not be liable for the actions of its management committee. The Tribunal did not understand those submissions and did not consider that such was a correct statement of the position on liability of a members’ organisation. In summary[50]The claimant was not an employee of the respondent. She was a contract worker within the meaning of section 41 EqA.[51]Mr Furness and Mr Anderson were not employees of the respondent. They were both, at all times, self-employed.[52]Mr Chesher was not an employee of the respondent. He was, at the material time, a member of the respondent club, the club’s President and also a member of its executive committee. Approved by: