Z Phoenix v J Sieckmann T/a Julia Aurelia Tarot and Meditation: 6006446/2024
EMPLOYMENT TRIBUNALS
Case No 6006446/2024
Between
Z PhoenixClaimantJ Sieckmann T/a Julia Aurelia Tarot and MeditationRespondent
Before
Employment Judge BowenIn person for claimantMr. Lewis-Bale (instructed by Counsel) for respondentDate 11 July 2025
JUDGMENT
[1]By CONSENT the name of Respondent is amended to Miss Julia Sieckmann t/a Julia Aurelia Tarot and Meditation.[2]The Claimant was not an employee of the respondent at the relevant time pursuant to s.230(1) ERA 1996.[3]The Claimant was not a worker of the Respondent at the relevant time pursuant to s.230(1)(a) and/or s.230(1)(b) ERA 1996.[4]The Claim is therefore dismissed as the Tribunal does not have the jurisdiction to determine it.
REASONS
[3]The Claimant and Miss Sieckmann were in a romantic relationship from 2021. Miss Sieckmann operates a business as a sole trader under the name Julia Aurelia Tarot and Meditation (‘the Respondent’). During 2022 and 2024 the Claimant did some video editing for the Respondent. The Claimant contends that he was either an employee or a worker when doing that work. The Respondent denies this and contends that the Claimant was a self-employed contractor at all times. The Parties further dispute the extent of the Claimant’s engagement and what was agreed in terms of remuneration.[4]By a claim form presented on 22 July 2024, the Claimant brought the following complaints:(a) Breach of contract - Notice pay;(b) Unlawful deduction of wages.[5]The Claimant also brought complaints for a redundancy payment and holiday pay, but both were previously dismissed upon withdrawal (p.90, para 48).
The issues
[6]The Claimant has brought claims against the Respondent for Unlawful Deduction of Wages and Notice Pay under the Employment Rights Act 1996.[7]The claims and issues were recorded and agreed at a PCMH before EJ Bax on 22 May 2025. EJ Bax listed this preliminary hearing to determine the following preliminary issues (p.84):a. The employment status of the Claimant;b. What was contractually agreed between the parties and any related issues.c. Was the Respondent entitled to dismiss the Claimant without notice.[8]Those issues were discussed at the outset of this preliminary hearing. The Parties also agreed that the preliminary issues must include consideration of the following sub-issues that had also been recorded by Employment Judge Bax (p.85-6):(i) Was the Claimant an employee of the Respondent within the meaning of section 230 of the Employment Rights Act 1996?(ii) Was the Claimant a worker of the Respondent within the meaning of section 230 of the Employment Rights Act 1996?”(iii) In relation to the UDW claim: Was there a contractual agreement for the Claimant to be paid in respect of content uploaded on YouTube.[9]I therefore proceeded to determine all of those issues. It was agreed that any other issues would, if appropriate, be determined on another occasion.[10]In relation to the notice pay claim and the issue set out at paragraph 7c above, the Respondent confirmed that it did not argue that the Claimant was guilty of gross misconduct or did something so serious that the Respondent was entitled to dismiss him without notice. That issue therefore fell away and did not require determination. The Respondent conceded that if I were to conclude that the Claimant was an employee that he was entitled to an outstanding sum in respect of 1 weeks’ notice pay. The computation of that sum would be determined at any remedy hearing. Procedure, hearing, evidence 2. The hearing was conducted via CVP. During the hearing the Claimant briefly lost connection on both 6 and 9 June 2025. The hearing was paused to allow for his reconnection. There were no further technical issues. Special Measures – Miss Sieckmann 3. Employment Judge Bax granted some special measures for Miss Sieckmann, in these proceedings (p.85 para 6-10, p.94 80-2). These were all implemented during the preliminary hearing. 4. The Claimant was ordered by Employment Judge Bax to provide his proposed cross-examination questions for Miss Sieckmann in advance for the Tribunal’s consideration and he did so. Employment Judge Bax indicated that the question of whether the judge or Claimant would put those questions to Miss Sieckmann would be considered at the preliminary hearing. The Claimant’s preference was to ask the questions of Miss Sieckmann for fairness. The Respondent’s Counsel confirmed that Miss Sieckmann would prefer to have the Claimant’s questions put by me to obtain her best evidence. The Respondent’s Counsel confirmed that the GP letter (p.251) and further allegations in Miss Sieckmann’s witness statement were relied on to support that application. It was accepted that the allegations about the Claimant’s conduct towards Miss Sieckmann had not been tested and that there was little evidence to support the allegations made. The Claimant confirmed that those allegations against him were disputed. 5. After hearing the parties' submissions; considering the Equal Treatment Benchbook; Presidential Guidance: Vulnerable parties and witnesses and the overriding objective I balanced the rights of the parties and the necessity for a fair hearing. I considered the Claimant’s proposed crossexamination of Miss Sieckmann carefully. There was very limited evidence to support or corroborate the allegations made by Miss Sieckmann and the GP letter was very limited in terms of detail. This was a remote hearing, Miss Sieckmann was giving evidence without her camera on, she was in her solicitor’s offices and I did not anticipate any lengthy questions to her about the difficulties in the Parties’ romantic relationship on the basis of lack of relevance. I concluded therefore that it was not in accordance with the overriding objective to grant this. Therefore, the Claimant was permitted to cross-examine Miss Sieckmann on relevant matters, which I would monitor and put insofar as such questions were actually relevant to any issues that the Tribunal needed to determine. 6. I emphasised that I would keep this decision under review and would be monitoring the interactions. I also confirmed I would monitor the crossexamination for relevance and appropriateness and I reminded the Parties of Employment Judge Bax’s comments (p.94): 7. I considered the Claimant’s cross-examination and I raised with the Claimant that:(a) I considered that some questions were not relevant;(b) Some questions required further clarification as they were complex and I could not understand them;(c) Some related to issues of remedy/computation which were not matters being determined at this hearing;(d) Some questions entitled “rebuttal of abuse allegations” which were said to be of procedural relevance only were not clearly relevant and questions about her prior relationships did not appear to have any relevance whatsoever. 8. I therefore asked the Claimant to reflect on these. He produced a revised proposed cross-examination of Miss Siekmann for 9 June 2025. I raised with the Claimant that some of his proposed questions about Miss Siekmann's employment status in historic jobs, disclosure and the deduction of £700 for rent were not relevant to the issues for determination. I also did not permit questions which were proposed on the Claimant’s personal perception of how someone who is the victim of abuse or fear would behave. I do not consider these to be of any probative value to the preliminary issues in these proceedings and concluded that they would unnecessarily distress Miss Siekmann. However, I permitted questions around allegations in the relationship to the extent that the evidence was put to the Claimant to ensure equity. As is usual in crossexamination, the questioner cannot always predict the answer that will be obtained. I therefore permitted the Claimant to ask additional questions during the cross-examination insofar as they were appropriate. Reasonable adjustments 9. No reasonable adjustments were sought for the Respondent’s side of the case (other than those summarised above). 10. The Claimant requested reasonable adjustments for the condition of epilepsy by email on 30 May 2025. The Claimant did not copy in the Respondent, but it was agreed that a copy of this request had been sent to them. The Claimant told the Tribunal he has been diagnosed with epilepsy. He stated that he generally felt funny headed and experienced “head fog”. He expressed he did not feel he was on all cylinders but confirmed he was fine to proceed with the hearing but requested breaks as needed. The Claimant also requested what he described as leeway in responding to questions. He explained to me that this was because he could find it difficult to find words as he was not used to the medication he was currently prescribed (Lamotrigine). He explained that he did not foresee any difficulty with understanding or being able to respond to questions. For this, he requested breaks and the ability to collect his thoughts as needed. The Respondent did not object to the adjustments sought. I informed the Claimant that these could be accommodated and that he should raise when a break was needed. These adjustments were implemented during the hearing. Adjournment part-heard[11]The Claimant told the Tribunal that he was experiencing blurred vision before the lunch break. After the break I checked on the Claimant’s health and he confirmed he was fine to proceed. Later in the afternoon, the Claimant stated that the issue with his vision was becoming worse. At that stage, he stated that he had experienced a paralysed eye during the lunch break. The was not raised specifically before. The Claimant told me that such symptoms are usually a precursor to a seizure. He also stated that he had a tremor in his chest and his arm had become worse since lunchtime and told me that he is being investigated for Parkinsons’ Disease. He asked to adjourn for the day in light of this. The Respondent did not oppose going part-heard in light of the Claimant’s application and supported it.[12]I concluded that it was clearly in the interests of justice and in accordance with the overriding objective to adjourn principally due to the Claimant’s illhealth. In any event, it was clear that the evidence and submissions could not be completed within the time allocation in any event. The matter was therefore adjourned until 9 June 2025. Documents[13]I was provided with the following documents:(a) A 280 page agreed bundle (which included written statements from the Claimant, Miss Sieckmann and Marie Ridge.(b) Respondent’s written submissions.(c) Claimant’s written submissions.(d) A bundle of authorities.(e) The Claimant’s draft cross-examination questions and explanation document (not sent to R in accordance with directions of Employment Judge Bax).[14]I heard evidence from the Claimant, Miss Julia Sieckmann and Marie Ridge. Each witness produced a written statement and all were taken as read. Transcripts and recordings[15]The bundle embedded (using a hyperlink) 4 recordings from the Claimant and 4 from the Respondent. I was told that those recordings were of different conversations between the Claimant and Miss Sieckmann on various dates. I explained that I had not listened to the recordings and they appeared to be of considerable length (in combination). I enquired as to whether either Party was proposing to play part or all of a recording. After discussion, each Party confirmed that no such request was made.[16]The bundle contained the following transcripts (of the above recordings), produced by the Claimant, which consisted of partial sections of a recorded conversation between the Claimant and Miss Sieckmann on 10 and 23 November 2023 (not 2024 as labelled):(a) Exhibit 1a – 99-101(b) Exhibit 1b – 102-104(c) Exhibit 1c – 105-109.[17]The bundle also contained the following transcripts produced by the Respondent:(a) Conversation 20/12/2023, full recording p.252(b)24/1/2024, partial transcript of longer recording p.252-3(c) 9/10/23, full recording of a part of what was a longer conversation (not all of it recorded) p.253-8(d)24/10/2024, full recording but part of a longer conversation p.258-262[18]Each Party had indicated in the bundle that it disputed the other’s transcripts but had not indicated why or which parts were for example, inaccurate. I therefore enquired as to why the transcripts could not be agreed and how it was proposed that this be resolved.[19]After taking instructions the Respondent’s Counsel confirmed that the Claimant’s transcripts could be agreed except for his descriptions of them in bold (at the top of the documents) or in the index. The Respondent confirmed that it did not object to me taking the transcripts into consideration.[20]The Claimant confirmed that he did not dispute the content of what was written in the Respondent’s transcripts but questioned the scope of them. He explained he thought they were segments of longer conversations. The Respondent confirmed the dates of each transcript and whether or not it was a full account of a recording or formed part of a longer recording (as summarised above). Following that explanation, the Claimant did not take further issue but made the point that he considered the context of the conversations was not clear as they were only elements of larger conversations and he disputed their relevance.[21]The Claimant confirmed that he did not know he had been recorded but asserted that the Respondent did in relation to his recording. Miss Sieckmann disputed this. The Claimant confirmed he did not object to me taking the transcripts into consideration.[22]This issue took considerable time because neither party had identified what was disputed about the transcripts and needed time to confirm their positions.
Findings of fact
[23]I make the following relevant findings of fact. Some of the findings on disputed factual issues are dealt with in my conclusions.[24]The Respondent is Miss Julia Sieckmann who is a sole trader operating under the name Julia Aurelia Tarot and Meditation (“the Respondent”).[25]The Respondent sells tarot-related content including online tarot courses and videos. The Respondent produces and sells video content via online platforms including Vimeo, Patreon and Teachable. Its income from those platforms derives from a combination of sales of that content and advertising on those platforms. The Respondent’s business was established and built up by Miss Sieckmann prior to any engagement with the Claimant.[26]The Claimant has a varied professional background including having worked for example, in a pub and as a Film Maker. In relation to film making, the Claimant has worked on both an employed and self-employed basis historically both in the United Kingdom and abroad including for example, Italy. He has worked for Channel 4, ITV and the BBC. When the Claimant was employed in those previous roles, he confirmed he had received payslips, holidays and holiday payments.[27]The Claimant and Miss Sieckmann entered into a romantic relationship on or around 4 June 2021. At that time, the Claimant did not have any working relationship with the Respondent. Video editing by the Claimant[28]There is a dispute between the Parties as to when in 2022 the Claimant began video editing for the Respondent.[29]The Claimant stated that he began providing full time video editing for the Respondent in July 2022, that this was supported by a PayPal payment he had received from the Respondent of £900.00 on 28 July 2022 (p.183) for that work. The next payment was on 27 October 2022 (p.183) for £800. The Claimant told the Tribunal that Miss Sieckmann had asked him to join the Respondent 3 or 4 times previously and he had said no.[30]Miss Sieckmann disputed this and said that Claimant began providing video editing for the Respondent in or around the end of October 2022. Miss Sieckmann stated that the Claimant was not doing any video editing before then.[31]She said that the Claimant had had a traumatic experience involving a boating incident in the Atlantic, following which he experienced a period of personal difficulty and been prescribed anti-depressants. She stated that she wanted to help him, as his romantic partner, to regain focus and structure and that she had already been supporting him financially. Miss Sieckmann stated that it was in that context that the Parties agreed that the Claimant would do video editing for the Respondent from the end of October 2022. Prior to this point, Miss Sieckmann explained that she had been doing the video editing as there was not a specific business need for another person to do this. She stated that the payment of £900 on 28 July 2022 was not for work done but to contribute towards the publishing costs of a book the Claimant had written.[32]I accepted that the Parties had previously discussed the Claimant joining the Respondent. However, overall, I found Miss Sieckmann's evidence on when the video editing arrangement commenced to be more credible and accepted it. The Claimant did not challenge Miss Sieckmann’s evidence about his traumatic experience, the impact on him or that she wanted to help him by offering the video editing work.[33]I also concluded that the Claimant’s evidence that he worked full time for the Respondent from July 2022 was not credible. When he crossexamined Miss Sieckmann, he put that he was consistently working for the Respondent from October 2022. I reminded the Claimant that he told the Tribunal when cross-examined, this was from July 2022 and he told me in response that it was “ad-hoc” and at the kitchen table at that time. I concluded that this was a contradiction to his earlier evidence that he was working full time for the Respondent from July 2022. I also noted that the Claimant did not give any evidence in his witness statement about any alleged commencement of the working relationship from July 2022. In addition, there was only one payment to the Claimant from the Respondent’s PayPal account between 22 July and 27 October 2022. I considered that it was extremely unlikely that the Claimant would not have received more payments during this period if he was working full time as claimed. I also accepted that the payment of £900 was not a payment directly related to video editing by the Claimant but was a contribution towards publishing costs. Agreement October 2022 – January 2023[34]From late October 2022, the Claimant was doing video editing for the Respondent. However, the nature of the arrangement at that stage is disputed.[35]The Claimant has claimed that the parties entered into a verbal agreement in 2022 in which they agreed to a split of revenue income from all videorelated projects, including YouTube content and a jointly developed online course (para 2 of the Claimant’s w/s). He told the Tribunal that this agreement was that Miss Siekmann would receive 60 per cent of the revenue received and he would receive 40 per cent for his contribution to filming, editing, co-creating and producing the video-related projects.[36]Miss Siekmann told the Tribunal that the discussion about the 60:40 split in revenue took place in early 2023 because the Claimant asked for higher payments for his work. She stated that the subsequent verbal agreement in this respect was made in February 2023.[37]I considered when the agreement was reached. I noted that the Claimant had referred to “last year” with reference to the parties’ agreement about revenue splits in a conversation with Miss Siekmann on 23 November 2023 (p.99). However, that exchange is brief and I consider that it is likely to have been a reference to when discussion started around the arrangement between the Parties, opposed to a date when any such agreement took effect. I concluded that the Parties starting discussing a new arrangement around the Claimant’s involvement with the Respondent from late 2022 and that Miss Siekmann was mistaken in stating it was early 2023.[38]The Claimant stated that he was working on a full-time basis throughout the period October 2022-January 2023. Miss Siekmann stated that his work was adhoc. The Claimant received PayPal payments from “Julia Auerlia Tarot & mediationen” marked as “General Payment” as follows; £800 on 27 October 2022; £900 on 18 November 2022; £900 on 26 December 2022; £900 on 6 January 2023 (p.183-4). The payments varied and were not made with any particular regularity as to date. I concluded that the amounts were very unlikely to be reflective of full-time work or the amount of work undertaken. I therefore accepted Miss Siekmann’s evidence that the Claimant worked on an ad-hoc basis between October 2022 and January 2023 and that the payments were made on an informal basis opposed to being part of any formal arrangement for work actually completed. There is no evidence of payments having been made to the Claimant for Vimeo revenue (p.269) before 23 February 2023 and the first Teachable payment was not until 1 June 2023 (p.273-5). The PayPal records produced by the Claimant show that he was paid £50 on 19 February 2023; £680 on 22 February 2023; £900 on 23 February 2023 and £3040.00 on 29 March 2023 (p.183-4).[39]I concluded that this all supported that there was change to the Parties agreed way of working and payment from February 2023 as stated by Miss Siekmann.[40]I therefore concluded that the arrangement between October 2022 and the end of January 2023 was an informal arrangement only, whereby the Respondent would make informal payments to the Claimant for ad-hoc work. There was not at this time any agreement for a revenue split of 60:40 as contended for by the Claimant at that time. Agreement from February 2023[41]In February 2023, the parties entered into an oral agreement that the Claimant would receive 40 per cent of the revenue income generated from Vimeo and Patreon video content that he had worked on. If the Respondent did not generate any sales then there would not be any revenue to split, the Claimant would receive no money and there was no contingency that the Claimant would be paid in this scenario. I was not taken to any written or other record of this agreement. The parties were in a romantic relationship and were clearly approaching the business relationship with informality.[42]Miss Sieckmann told the Tribunal that it was agreed by both her and the Claimant that this arrangement would only exist insofar as their romantic relationship did. Thus if their romantic relationship ended so would the business relationship. The Claimant disputed this. He accepted that there had been a discussion about it but he had understood that would depend on how the relationship ended. He gave the example that if he had an affair the business relationship would not continue. Given the way in which the parties initiated, approached and operated this arrangement including the total lack of any formality and written agreement I concluded that this would have been understood by the Claimant and I accepted that it was their joint intention from the outset that if their romantic relationship ended so would the business relationship. I also accepted evidence that in February 2024 the Claimant ended his romantic relationship with Miss Sieckmann and said he would not be working for her any longer. I considered that this also reflected the Claimant understood that the romantic and business relationships would end together. I reject the Claimant’s suggestion to the contrary, which I found lacked credibility for the above reasons. YouTube[43]The Parties disagree as to whether their agreement included revenue from YouTube. The Claimant asserts that it did and Miss Siekmann states that it did not. Miss Siekmann told the Tribunal that at the time she did not make sales on YouTube, but that revenue was generated from advertising only. The Tribunal was informed that the YouTube income was generated under Weil Du Schoen Bisht at the time and not the Respondent prior to February 2024. She explained that the income went into a German bank account operated by her German business partner, for the purpose of paying a tax debt in Germany. She told the Tribunal that this arrangement was in place before the Claimant became involved and that the practical effect was that she did not receive the money either. She said she would not have agreed to payments to the Claimant for YouTube on that basis.[44]The Claimant stated in his ET1 claim form that he had not received any payments from the Respondent for YouTube revenue. He stated that Miss Siekmann told him that she was saving the YouTube money for them both in an account, in order for them to but a property in the future (p.9).[45]During a conversation on 10 November 2023, the Claimant referred to an agreement to do all video projects and stated to Miss Siekmann, “I’m not asking for more money, I’m not asking for the YouTube money, which is my creative work, I’m not asking for this, I agree with the terms that we went into this with” (p.105). Miss Siekmann explained that the YouTube money was really complicated, had been set up in Germany and she had tried but could not change it (p.105). The Claimant referred to doing Miss Siekmann a favour by not making an issue of not receiving payments for YouTube (p.106). During the conversation, the Claimant also stated as follows: “40.I'm not saying I'm not being paid well; I'm saying we're splitting the money that comes in. That can be a few thousand or it could be a few pence. I'm still doing the work and I'm still taking it on under that thing. If this is not going to grow for me, then there's no point in me being in it. If this is a cap, which is what you seem to be saying it is.” (p.106)[46]I concluded that the evidence supported that the Parties did not reach an agreement that the Claimant would receive 40 per cent of the revenue generated from YouTube. This was reinforced by the Claimant’s comments on 10 November. In addition, I concluded that it was highly unlikely that Miss Sieckmann would have agreed to that given that the income from YouTube was not generated from sales but advertising and that income was already being directed to a German bank account to pay tax debts. It was also clear that the funds went into a German account managed by her German business partner prior to February 2024 and that this was in place for some time before the Claimant’s engagement. Therefore, I concluded that there was no intention or agreement that the Claimant would receive any proportion of the income generated from YouTube. Partnership and correspondence about status[47]The Parties discussed at the outset of their arrangement whether to enter into a business partnership. This was supported by the transcripts of their conversations on 10 and 23 November 2023 contained in the bundle. On 10 November 2023 the Claimant asserted during a conversation with Miss Sieckmann, “I agreed to do this as a partnership. You agreed to do this as a partnership.” (p.108) Miss Sieckmann did not respond to that assertion. However, by 23 November 2023, the Claimant accepted that the partnership “never materialised” (p.100).[48]Despite that, on 23 April 2024, the Claimant instructed solicitors to write to the Respondent (p.113-4). In that letter, it was asserted that there had been a “verbal partnership agreement” between the Parties. With reference to payment, it stated that the agreement was for the Claimant to “retain 40% of the royalties and revenue from your online accounts” and referred to some “royalties” as having been paid. The letter asserted that there was an ongoing obligation to pay the Claimant his share of social media revenues. A claim for breach of contract and non-payment was intimated.[49]The Claimant sought to distance himself from this correspondence before the Tribunal and stated he was not responsible for how the solicitors had worded the letter. However, I find that the content of that letter must have been on the basis of the Claimant’s instructions to the solicitors. This was supported by the fact that the Claimant described the arrangement between the Parties as a partnership at the material time and on multiple occasions. Therefore, the letter was consistent with his own documented statements.[50]The Claimant also instructed Angela Williams (Accountant), to correspond with the Respondents’ solicitors on 8 May 2025 (p.120-123). The email asserted that the Claimant was in full time employment with the Respondent. It was also stated that Miss Sieckman had discussed the possibility of the Claimant being a partner with her accountant or alternatively putting him on PAYE as he worked as a “full time employee” of the Respondent. It goes on to state: “As the partnership agreement didn’t materialise he assumed that he was therefore on a PAYE Scheme and therefore, as the business owner, you were responsible for producing payslips and paying his tax and N.I contributions.” (p.121)[51]The correspondence also states that the Claimant has only worked for the Respondent on PAYE and was a full-time employee. Ms. Williams, denied the Claimant was a sole trader and stated that he did not invoice the Respondent and there is no written document to support he was. The correspondence asserts that the Claimant was also entitled to 40 per cent of YouTube revenue which had not been paid.[52]Miss Williams wrote to the Respondent’s solicitors again on 15 May 2025 (p.117-8). In that email correspondence, Miss Williams asserted that she was an agent of HMRC and sought disclosure around alleged tax avoidance. The email in effect asserts that the Respondent retained liability for tax and national insurance for all payments to the Claimant. It complained about no payslip having been provided for a payment on 14 May 2024.[53]The Respondent instructed its own solicitors who responded to that letter on 14 June 2024 (p.115-6). It was denied that there was a partnership agreement and asserted that the Claimant was a self-employed contractor. It asserted that the agreement between the Parties was for a payment of 40 per cent profits to the Claimant received from Vimeo and Patreon for the provision of his services as a self-employed contractor. It stated that their romantic relationship ended and the Respondent subsequently no longer required the Claimant’s services from March 2024.[54]Counsel confirmed that it was not the Respondent's case that the parties entered into a legal partnership agreement, but that the arrangement that was agreed was more akin to one, on the basis of a profit share. The Claimant was asked about the term partnership which he and solicitors on his behalf had used. He was asked how a partnership would be consistent with worker or employment status. He told the Tribunal that that his references has been to the romantic relationship which he described as a “partnership”. When he was reminded of his solicitors’ letter he then stated that his was a reference to the verbal agreement made for 60:40. I found the Claimant’s explanation about the romantic relationship lacked credibility. It is abundantly clear that he was seeking to assert via his solicitors (p.113) that there was a business partnership between the parties. It is clear this was not a reference to the romantic relationship. I concluded that he was now concerned that assertion might undermine his own case on employee and worker status and therefore was seeking to change what he had clearly said previously to suit his current argument.[55]I concluded that although the parties had discussed it they not entered into a formal partnership agreement at any time. I have set out my further conclusions on employment status below. April 2023 – Tarot Course[56]In or around April 2023, the Respondent decided to create an online Tarot Course (‘the course’). It was agreed that the Claimant would assist with the creation of the curse and he did so. The Parties again agreed that the Claimant would receive 40 per cent of the profit generated from the sale of the course on Teachable.[57]By the Summer of 2023, Miss Sieckmann realised that the income from the course was substantial. It was at this stage that she suggested to the Claimant that he speak to her accountant, Marie Ridge, about his tax affairs.[58]Miss Sieckmann stated in her witness statement that in October 2023, the parties verbally agreed to reduce the revenue split to 80:20 in her favour in relation to the course on Teachable. On 10 November 2023, the Parties discussed this (p.102-4). On that date, the Claimant told Miss Sieckmann that he did not accept a reduction from the previously agreed 40 per cent. Miss Sieckmann’s position was that the Claimant was in effect being overpaid for the course and it was unfair towards her. The Claimant did not challenge Miss Sieckmann’s assertion in her witness statement that he had agreed to a reduction to 20 per cent. During his own crossexamination the Claimant stated, “I said you are my employer you can do what you like”. On the Claimant’s own evidence, he agreed to the reduction from 40 to 20 per cent in relation to the course. I concluded that this was agreed in October 2023 as asserted by Miss Sieckmann. Method of working[59]The Claimant asserted that throughout the period he worked full time. I have made findings about periods before February 2023 above. The Parties were in disagreement about the amount of work undertaken after February 2023 also. The Claimant asserted he was working around 50 hours a week and almost every day. The Respondent considered it was substantially less. In cross-examination the Claimant agreed that he edited around 56 videos a month. The Claimant also rejected that it took 15 minutes to edit a video and stated 1 hour 45 minutes to 2 hours was more accurate. When Miss Sieckmann was cross-examined, she suggested it was 7-10 days a month working 4-6 hours a day. When the Claimant cross-examined Miss Sieckmann, he put that he had produced around 900 more videos than accounted for. In submissions the Claimant stated even on a conservative estimate he produced 92 videos or more per month and worked 6 days a week. The parties could not agree the days, hours or number of videos worked on. I was not provided with any independent evidence in relation to this issue of time worked. The evidence on this issue was poor from both parties. The Claimant’s evidence was contradictory and changed which made it less reliable he had initially agreed to editing 56 videos a month but then sought to put an additional 900 videos were unaccounted for. Miss Sieckmann’s evidence was unclear around this issue. However, I was not persuaded that the Claimant was working effectively 25-28 hours per week on video editing for the Respondent during this period. The Claimant worked regularly and routinely for the Respondent from February 2023. I concluded that during this period that this work could not properly be described as ad-hoc.[60]The Claimant’s hours were though flexible, and he was not obliged by the Respondent to work a set number of hours, dates or periods of time. He could take time off when he needed to.[61]The Claimant undertook video editing when the need arose. There was no obligation on the Claimant to accept that work and none on the Respondent to provide it to him. The Respondent was free to engage someone else to do video editing and had no obligation to engage the Claimant. Equally, the Claimant was not obliged to be available for work or to accept video editing. I accepted that if he was not available then either Miss Sieckmann would do the work or if necessary, she could have engaged someone else to do so.[62]The Claimant was free to be unavailable to do video editing without any restriction. For example, on one occasion, he informed Miss Sieckmann that he would be attending a Neurolinguistic Programming Course of 1-2 weeks. It was clear that he did not consider or need permission to do this. He simply indicated this is what he was going to do and was not available for video editing.[63]In relation to holidays, I accepted that the Claimant could have taken time off without permission, authorisation or reference to Miss Sieckmann. However, I also accepted that given the Parties romantic relationship, in practical terms they would arrange and go on holiday together.[64]The Claimant had asserted on his ET1 that he received holiday pay. There was no evidence at all to support this. The Respondent denied that he was paid holiday pay. The payments were made when revenue was generated and there appeared to be no correlation whatsoever to holiday. I therefore reject the assertion that he was paid holiday pay.[65]The Claimant told the Tribunal that he had no autonomy in the video editing work, that Miss Sieckmann dictated the videos to edit and the whole workflow operated under her direction. He said, “she would sit on my shoulder and give instructions” and specify what it (i.e. the video) should look like. He also stated that the timings were linked to Miss Sieckmann for example, if she was too exhausted then work would not be undertaken (as she would not have recorded videos).[66]Miss Sieckmann denied this. The grounds of resistance state that the Respondent did not supervise the Claimant’s work and did not have control over it day-to-day including his hours or whether he worked for other companies.[67]I concluded that it was obvious that the Claimant would need to edit the videos recorded by Miss Sieckmann (rather than ad hoc choosing what he was editing). I accepted that Miss Sieckmann would have input into editing, including guidance on appropriateness of it due to the language barrier into German, but rejected the suggestion she was sat on his shoulder controlling every element of his work. The Claimant was engaged to edit videos, and I find that when he was doing that it was subject to those limitations within his own autonomy.[68]There was no evidence of any restrictive covenants. I accepted that the Claimant was entitled to work for other people and/or companies at his own will. Miss Sieckmann accepted that the Claimant was not advertising his services to others at the time he was working with the Respondent.[69]The Respondent provided the equipment and studio set up for the video editing such as a computer, desk and chair, editing software and camera. Miss Sieckmann stated that this was because they were in a romantic relationship as well and the Claimant did not have sufficient funds, and I accepted her evidence in this regard.[70]Although neither party has referred to it in their pleadings or witness statements, the Claimant asked Miss Sieckmann in evidence whether he had the right to substitute. Miss Sieckmann stated at he could have done but because the work was part of helping him regain focus following his traumatic experience, it would have defied the point. She agreed that it was expected that he would personally complete the editing and production work because the intention was to help him focus his mind.[71]I checked Miss Sieckmann’s position on this, and she confirmed that if he did not do the work she would have done it herself and that it would make no sense to send a totally different person. She said “I suppose he could have done but it did not crop up. If he said he could not work this week we would have rearranged everything. It was flexible.”[72]The Claimant was not subject to the Respondent’s disciplinary or grievance processes. Miss Sieckmann confirmed that the Respondent does not have a disciplinary policy but that she did not consider herself entitled to subject the Claimant to any disciplinary process in any event. Payments[73]The Respondent paid the Claimant approximately 2 times a month from January 2023 and in wildly varying amounts. I have been provided with documentation to support those payments (p.213-50) as well as the PayPal documents. I have also been provided with payments indicated to be linked to Vimeo, Patreon and Teachable revenue. Those payments were not uniform in amount or payment date because they were determined by revenue. The payments were made by the Respondent automatically. The Claimant did not submit any invoices, and the Respondent did not generate payslips.[74]The Respondent did not deduct income tax or national insurance from the payments made to the Claimant. The Claimant asserted when crossexamined that he was told by Miss Sieckmann that the Respondent’s accountant would be deducting tax and national insurance on his payments The Claimant was asked when Miss Sieckmann said this, he stated it was in 2023 after a few months of working, when she decided to get an accountant because she was worried about tax. The Respondent’s Counsel put to the Claimant that it was his responsibility to make arrangements for Tax and National Insurance. The Claimant denied this and stated “...it was the agreement, it was what I assumed was happening and that is what she led me to believe..” meaning that the Respondent was arranging for the deductions.[75]There was no reference to this in the Claimant’s witness statement where he referred to the letter sent on his behalf by Chubb Bulleid, Solicitors. However, that letter refers to a partnership and not tax. The Claimant’s accountant, Ms Williams stated in her correspondence that the Claimant had “...assumed that he was therefore on a PAYE Scheme...” (p.121).[76]I found the Claimant’s evidence about this point to be contradictory and lacking in credibility. His own accountant, who had clearly taken instructions from the Claimant referred to an “assumption” around PAYE/tax deduction and this was referenced by the Claimant in this hearing. Assuming is not consistent with the assertion that he was told this by Miss Sieckmann. I also consider that an assumption is not reflective of an agreement. The Claimant’s additional suggestion that Miss Sieckmann had led him to believe that tax and NI was being deducted was said to be because they had initially discussed he would be either a partner or on PAYE. This was not supported by any additional detail and was firmly denied. The Claimant stated that he did not make any enquiries or checks about this because Miss Sieckmann stated, “we have an accountant”.[77]Miss Sieckmann denied the Claimant’s account. She told the Tribunal that she had suggested on a couple of occasions that the Claimant connect with her accountant, Marie Ridge so he could sort out his tax. She explained that she was a bit concerned because large amounts of money were paid to the Claimant, and he said something along the lines of he did not mean to declare but she could not recall exactly what was said. Miss Sieckmann stated that when she raised this to him, he said later, not now. Miss Sieckmann stated that she did not tell the Claimant he was PAYE and that was never discussed. She stated that this was not mentioned and that the Claimant wanted to be a partner.[78]I did not find the Claimant’s evidence credible on this point. I concluded that the Respondent had not told the Claimant or led him to believe that it was deducting income tax or NI from payments made to him. I also concluded that the Claimant understood that to be the case. It is only when the relationship came to an end and the Claimant engaged the assistance of an accountant that this was raised. I found the Claimant’s evidence to be entirely lacking in credibility.[79]I accepted that Miss Sieckmann suggested that the Claimant speak to Marie Ridge about his tax affairs. I did not find her evidence that the Claimant indicated he did not intend to declare for tax purposes reliable because she could not recall the exact conversation and her account on this was vague. I also noted that this was not contained in her witness statement.[80]The Claimant did not receive payment for holiday pay, pension contributions or any other benefits from the Respondent. Nor were payslips, a P60 or P45 generated. Autumn 2023[81]On 9 October 2023, the Claimant asserted to Miss Sieckmann that she was his employer (p.254). She did not respond. Miss Sieckmann informed the Tribunal that it is clear from the remainder of the transcript of that conversation that she was rejecting his position but was emotionally overwhelmed and struggling to communicate. I accepted this evidence. I find that the Claimant was badgering Miss Sieckmann (and visa versa), the tone of the conversation was objectively aggressive, and the Parties were clearly having an argument. I also noted that Miss Sieckmann stated “don't blackmail me” and “dont threaten me, that's a thing you do all the time” which supported her explanation of how she felt. It appeared from reading the transcript that because of this the Parties were exchanging insults and that the conversation was generally unreliable as a true reflection of their underlying working relationship or employment status because it was a heated argument.[82]In November 2023, the parties discussed their arrangement. The Tribunal was provided with transcripts for discussions on 10 and 23 November 2024. The Claimant asserted both on 23 November 2024 (p.99-101) and before the Tribunal that the agreement reached meant that he had an ongoing entitlement to 40 per cent for as long as the videos were in use and even after his engagement with the Respondent had come to an end. He explained to me that he interpreted this as an ongoing right even at the time of this preliminary hearing and referred to his copyright. Miss Sieckmann denied this and stated that any entitlement to payment ended with the Claimant’s engagement with the Respondent. I concluded that Miss Sieckmann’s account was a more accurate reflection of the agreement that the Parties had reached and that her responses during the conversation on 10 November 2024 reflected that this was not how she had intended or understood the position.[83]The parties had a discussion on 23 November 2023, which the Claimant recorded. The Claimant provided a transcript for part of this discussion (p.99-101). In that meeting the Claimant asserted to Miss Sieckmann as follows: “...we agreed a 60-40 split across the board...” (p.99) The parties discussed their business arrangement. The Claimant asserted that there had been an agreement to be a “partnership” at the outset of the arrangement and that there would be a 40:60 split “across the board” on the “videos and stuff” (p.99, 100). The Claimant expressed that it was his “assumption” that as long as the videos were up this would be recurring. He stated he was “on call” to do videos, repair videos and if Miss Sieckmann required another video he was there to do it. The focus of the conversation was around the online tarot course and what payments the Claimant would receive for that.[84]The Claimant stated that when he asked for the money on 10 November 2023 Miss Sieckmann informed him that it was in a German bank account. On the ET1 there is no reference to Miss Siekmann informing the Claimant that she was using the money to pay for tax liabilities. The Claimant has referred to this in his witness statement and states that this was without his consent or knowledge. The Claimant states in his witness statement that he seeks “unpaid royalties and potential misappropriation of funds” (para 4 w/s) in this regard. January 2024[85]The Parties briefly discussed the employment status of the Claimant in January 2024. The Claimant’s evidence that this was about being a partner only. However, I accepted Miss Sieckmann’s evidence that she raised whether he wanted to be an employee and that the Claimant quickly dismissed that idea and stated, “I don’t want to be employed. I want to be in a partnership with you.” I accept that Miss Sieckmann made clear to the Claimant that she did not want to start a business partnership with him. I found that Miss Sieckmann’s evidence persuasive and considered it was unlikely that this would have been fabricated or incorrectly recalled due to the certainty with which she gave evidence.[86]Miss Sieckmann also stated that she had concerns about the Claimant’s manner towards her in their personal relationship which had also made her reluctant to enter into a partnership with him. The difficulties in their communication and interactions are supported by the transcripts provided of their conversations and especially those at p.252-58. Those conversations support that the parties were struggling to get on and were in dispute. That was also supported by the transcripts that the Claimant had provided.[87]The Claimant questioned whether he was an employee or a freelancer on 24 January 2024 (p.253). End of relationship[88]There was a dispute about when the parties romantic relationship came to an end and who ended it. The Claimant stated this was in March 2024 when Miss Sieckmann went to Germany and ended the relationship. The Claimant stated that this was supported by the text messages at p.144 onwards and p.166. The messages started on 29 February 2024 (p.144). Those messages show the Parties speaking about domestic matters and getting on positively until around 27 March 2024 (p.171). Miss Sieckmann stated that their relationship ended on 19 February 2024 when the Claimant ended the relationship.[89]I preferred Miss Sieckmann’s evidence and concluded that the Claimant ended the Parties romantic relationship on 19 February 2024 and told Miss Sieckmann that he would no longer provide editing services. He advised her to find someone else. Prior to this, the parties had entered into a Tenancy Agreement for a new residential property. The Claimant asked Miss Sieckmann if he could help with editing for a month or two to sort himself out. She agreed to this and they continued to live together at this time. I accepted that this was then the ongoing business relationship between the Parties namely, that the Claimant would do video editing for up to 2 months. I concluded that the messages that the Claimant relied on to show an ongoing romantic relationship were consistent with them sharing a home and broadly getting along with one another until 27 March 2024.[90]I accepted that the atmosphere between them was strained and they argued. I accepted Miss Sieckmann’s evidence as credible, that she found this stressful, emotional and that she felt under constant strain.[91]Miss Sieckmann told the Tribunal that in late March there was a particularly aggressive confrontation with the Claimant, causing her to feel physically unsafe and that she had to leave the property urgently. She said that she contacted a friend to stay the night and planned to leave for Germany to escape.[92]It is not disputed that Miss Sieckman went to Germany. However, the Claimant denies that he was abusive towards Miss Sieckmann or that her travel plans were a compulsion to flee from him. He told the Tribunal that her travel plans were pre-arranged and submitted that her allegations of abuse were contradicted by their messages on social media between 25- 27 March and 6-16 April 2024, which he stated were amicable, frequent and casual in nature and did not indicate abuse, conflict, distress or the need to escape. On 27 March 2024, the Parties correspondence changed with a disagreement about the way in which their relationship ended and the suggestions of jealousy (p.171 onwards).[93]I considered this evidence cautiously. I accepted that Miss Sieckmann’s trip was pre-arranged but that she used that timing as the opportunity to draw a line in the sand and end the Parties working relationship. The Parties discussed this and that the final payment would be made in April 2024 for work done.[94]Miss Sieckmann states that the Claimant’s behaviour then escalated and she reported this to the police. The Claimant denied this and disputed that the police had been contacted because he had not been contacted in turn by them. I accepted that Miss Sieckmann reported her concerns about the Claimant to the police. I concluded that simply because the police had not informed the Claimant directly, it did not mean that this had not happened. I also accepted that Miss Sieckmann was concerned about the Claimant's behaviour towards her.[95]The Parties were still in contact on 24 October 2024 having attended a party. I have considered a transcript of a conversation they had on that date (p.258-262). During that conversation the following exchanges took place between the Claimant and Miss Sieckmann: “...Female voice: You, you have threatened Male voice: I have never Female voice: You have threatened, you were aggressive towards me, you threatened me Male voice: I’ve always been like that, I’ve always been like that Female voice: You threatened me, you’ve always been like that threatening people Male voice: I’ve always been like that Female voice: What do you mean Male voice: I’ve always been like that Female voice: How do you mean Male voice: Well I’m not really threatening now to be fair Female voice: Not now, but what do you mean that you’ve always been like that Male voice: I’ve done terrible things to people Female voice: what do you mean Male voice: I’ve been a monster, I told you Female voice: You’re kidding me Male voice: No Female voice: What do you mean Male voice: I’ve been terrible Female voice: But how, you said about the coffees throwing someone’s coffee over but I am mean, yeah that was impulsive but that wasn’t like a monster, what did you do Male voice: If you speak to other people you’ll find out...” (p.258-9) “... Male voice: Shut up Female voice: Shut the fuck up yourself, don’t silence me like that Male voice: Do you know how close you are right now Female voice: To what, seriously what the fuck Male voice: Yeah, what the fuck, do you know how close you are right now...” (p.259) “... Male voice: Because you have pushed me now to the limit Female voice: See that’s a threat again oh my goodness you have just told me you have been a monster to people and all of that and Male voice: I would be very careful if I was you right now...” (p.260) “... Female voice: This is why I think things can change Male voice: Things can’t change Female voice: Why can’t things change, so you are saying nothing can change so you don’t even believe in what you do now with the coaching, you don’t think people can change cos then you are like a bull shitter with your business, so if you think things can’t change, people can’t change what are you doing Male voice: Be careful Female voice: Be careful yourself, stop threatening Male voice: How do you want tonight to go in your imagination how do you want it to go right now Female voice: Ok my favourite outcome would be if you could peaceful with each other but you are just threatening me you’re just saying Male voice: Do you want the Police to turn up tonight Female voice: Why would the Police turn up Male voice: Because they are going to Female voice: Why Male voice: They are going to Female voice: Why Male voice: Because you are going to call them Female voice: Why would I call the Police Male voice: Because probably Adam will call them because you’re going to be screaming and shouting and running..” (p.261-2)[96]During that conversation Miss Sieckmann told the Claimant to “shut the fuck up” (p.259), stated that the Claimant was not mentally stable, was “making shit up” (p.260) and she suggested he was a bullshitter within his coaching business because he did not think things could change (p.261).[97]The Claimant stated that he was drunk during this conversation; his reference to being a monster was a reference to his childhood experiences and need to engage in related criminal proceedings against wrongdoers; and he accepted that his comments were not very pleasant. He stated that the Claimant was not in fear or threat because she was recording the conversation whilst they were lying on a bed. He explained that the reference to the police was not because he was threatening to harm Miss Sieckmann but because she overreacts and screams. He thought that this would cause Adam to call the police.[98]I find that the Claimant’s comments in that conversation were threatening and abusive towards Miss Sieckmann. Those comments were clearly made to cause alarm, fear and distress towards her. The most startingly comment is the reference to calling the Police which clearly was a threat of unlawful conduct towards Miss Sieckmann, hence why law enforcement would be contacted. I found the explanation that this was a reference to Miss Sieckmann tending to overreact to matters entirely lacking in credibility. I reject the Claimant’s assertion that this is entirely mitigated by the fact he was intoxicated. I found that this conversation generally supported that the Parties relationship generally had eroded and this supported Miss Sieckmann’s description of concerns about the Claimant’s conduct towards her.[99]However, I make no finding that the Claimant engaged in emotional and psychological abuse more generally as set out in Miss Sieckmann’s witness statement amounting to domestic violence or otherwise, because it is not necessary for me to do so in order to resolve issues in this case. I make no finding that the Claimant physically abused Miss Sieckmann. This issue was not of material or broader relevance to the agreed issues that I needed to determine. Last payment[100]The Respondent accepts that in the Claimant’s last payment £700 was deducted for rent on their personal residential property. Submissions[101]I do not seek to rehearse in full the Parties submissions which I have taken into consideration in full. However, provide a summary below.[102]The Respondent provided a written skeleton argument which was supplemented by oral submissions. It was submitted that the Claimant was a self-employed sub-contractor who was free to set his own hours, take time off and undertake other work. It was submitted that the Claimant was not an employee or worker. There was no mutual obligation, payment was a profit share more akin to a partnership (although the Respondent did not argue there was a legal business partnership), there was insufficient control for statutory status and the Claimant could work for others. It submitted that it was agreed that the business relationship would end with the romantic relationship and the agreement did not include YouTube. It was submitted that the structure of the relationship only made sense if it was freelance otherwise the Respondent would have been the business owner and practically earned less than the Claimant. It was also submitted that the Claimant provided his services to the Respondent as his client or customer.[103]The Claimant submitted he was an employee or worker at all material times. He was not self-employed, and the Respondent was not his client or customer. The agreement included payment of 40 per cent of the revenue from YouTube as well as Vimeo, Patreon and Teachable for videos he had worked on. It had not been agreed that the relationship would end with the romantic relationship. He submitted there was mutuality of obligation, sufficient control and he was working as part of the Respondent’s business. Legal principles Employment status
Legal principles
[104]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.(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.[105]In determining whether a claimant has employment status of one kind or another, a court or tribunal must first be satisfied that there is some form of contract between the individual and the putative employer. In the absence of a contract , whether express or implied, and whether made orally or in writing, there can be no employment relationship.[106]In Tiffin v Lester Aldridge LLP 2012 ICR 647, CA, the Court of Appeal confirmed that a partner cannot be an employee of a partnership.[107]The question of whether someone is a worker, employee or selfemployed is primarily a question of fact for the Tribunal, Bates van Winkelhof v Clyde and Co LLP [2014] IRLR 641 SC.[108]A contract of employment means a contract of service. The starting point is the multiple test advocated by McKenna J in Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance 1968 1 All ER 433, QBD. He stated: “A contract of service exists if these three conditions are fulfilled.(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master.(ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master.(iii) The other provisions of the contract are consistent with its being a contract of service.”[109]In short, this test provides for 3 elements namely(a) mutuality of obligation(b) personal performance and(c) control. Also referenced as the “irreducible minimum”. It is also a question of whether the other provisions of the contract are consistent with it being a contract of service.[110]A lack of obligations on one party to provide work and the other to accept work would result in ‘an absence of that irreducible minimum of mutual obligation necessary to create a contract of service’ (Carmichael and anor v National Power Plc 1999 ICR 1226, HL at 901-902). It is legitimate in a case where the contract is based on oral exchanges and on conduct to consider the evidence of the way in which the parties understood their relationship and the way in which they conducted themselves in practice – per Lord Hoffman in Carmichael.[111]In a typical case the obligations in question will be an obligation on employee to work and an obligation on the employer to pay for work but it may not be necessary in every case for there to be an obligation to work and provide work. It may be sufficient if there is an obligation to accept and do such work as is offered to him and on the employer to pay the employee for the work that is done, and if there are periods of no work to pay a retainer.[112]When approaching the issue of employment status a checklist approach is to be avoided (Hall (Inspector of Taxes) v Lorimer 1992 ICR 739. ChD): ‘[T]his is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of evaluation of the overall effect of the detail… Not all details are of equal weight or importance in any given situation.’ p.5[113]The parties own descriptions of a persons’ status are relevant but not conclusive, the tribunal’s focus is on the reality of the relationship, having regard to any oral or written agreements and how they worked in practice, including over a sustained period of time (Richards v Waterfield Homes Ltd [2022] EAT 148).[114]In Knight v BCCP UKEAT 0413/10 the EAT considered the agreement in the context of an oral contract and whether it gave rise to the required mutuality of obligation: “[17] It is appropriate to see what obligations the Claimant and the Respondent owed to each other bearing in mind that there was no written contract or any other evidence of an agreement between the parties. Starting with any obligation owed by the Respondent to the Claimant, it is noteworthy that the Claimant accepted that there was no obligation on the Respondent to give him a certain number of jobs although he said “my expectation was to earn the money I had said” and of course “an expectation” is not an obligation. Furthermore it was accepted that the Claimant only got paid for work he did. So there was no mutual obligation on the Respondent of the kind which Lord Irvine said was “the irreducible minimum necessary to create a contract of service”.[115]In relation to control, the Court of Appeal has emphasised that what is required is the “ultimate” ability of the employer to control the manner in which work is carried out; it is not necessary that the employee is subject to detailed factual control on a day to day basis (Troutbeck SA v White [2013] IRLR 949).[116]In Pimlico Plumbers Ltd v Smith [2018] UKSC 29, it was held that employment status must be considered on the individual facts of each case.[117]Further guidance on determining worker status was provided by the Supreme Court in Uber BV v Aslam [2021] UKSC 5.[118]Other factors can include consideration of the level of integration into the organisation and the economic reality of the arrangement; payment wages/salary; whether the they provide their own equipment; whether they are subject to employer grievance and disciplinary procedures; receipt of sick pay or contractual holiday pay; provision of benefits traditionally associated with employment such as pension, health care etc.; being part of employers business; whether restricted working for others; whether they take a degree of financial risk, has responsibility for investments and management; and whether they have the opportunity of profiting form sound management in performing his task, Worker status[119]I drew the Parties attention to the recent decision in Ter-Berg v Maldle and Hancock [2025] EAT 23 in which HHJ Auerbach summarises the relevant principles in relation to determining the issue of worker status at paragraphs 20-27 which for ease of reference I set out below: “The Law 20. I have already set out the statutory definition of a worker. There are three elements, that must all be satisfied. They are that(a) there be a contract (subject to a qualification discussed in Ter-Berg 1 at [48] that has no relevance in this case);(b) whereby the individual undertakes to do or perform personally any work or services for another party;(c) whose status is not by virtue of the contract “that of a client or customer of any business undertaking carried on by the individual.” 21. The concept of mutuality, or an irreducible minimum, of obligation, is a usage which dates back at least to the speech of Stephenson LJ in Nethermere (St. Neots) Limited v Gardiner [1984] ICR 612, at 623C- F. As subsequent authorities have discussed, it may be used refer to the fact that (whether for employee or worker status) there must, at the relevant time, be a contract, in which both parties have undertaken legally binding obligations to the other, and/or to the fact that those obligations must be of a kind which fulfils the essential elements of a contract of that type. Such issues may arise, in particular, in cases where the nature of the relationship is that it involves intermittent discrete assignments, and where issues arise about the position (as to the existence and/or the content of a contract) both during and between assignments (see e.g. Stringfellow Restaurants Ltd v Quashie [2012] EWCA Civ 1735; [2013] IRLR 99 at [10] – [14]). 22. As to the minimum content or nature of the obligations, in order for it to be a contract of employment, the touchstone remains the decision of MacKenna J in Ready Mixed Concrete (South East) Ltd. v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515C-D: “A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.” 23. In Nethermere Stephenson LJ referred to what MacKenna J went on to say about (i) at 515D-E, which I will cite a little more fully: “As to (i). There must be a wage or other remuneration. Otherwise there will be no consideration, and without consideration no contract of any kind. The servant must be obliged to provide his own work and skill. Freedom to do a job either by one's own hands or by another's is inconsistent with a contract of service, though a limited or occasional power of delegation may not be: see Atiyah's Vicarious Liability in the Law of Torts (1967) pp. 59 to 61 and the cases cited by him.” 24. In Nethermere Stephenson LJ then observed: “There must, in my judgment, be an irreducible minimum of obligation on each side to create a contract of service. I doubt if it can be reduced to any lower than in the sentences I have just quoted …” 25. There has been much discussion in the authorities as to the interpretation of the third limb of the definition of a worker, and what test marks out the boundary between being a worker and being neither a worker nor an employee. In Byrne Brothers (Formwork) Ltd v Baird [2002] ICR 667 the EAT (Mr Recorder Underhill QC and members) said at [17] (in part): “(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 Byrne Brothers 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 Regulations do not extend to "the genuinely self-employed"; but that is not a particularly helpful formulation since it is unclear how "genuine" selfemployment 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 sense intended by the Regulations – given that they cannot be the same as the criteria for distinguishing employment from selfemployment. 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-à-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 pass-mark, 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 (above), esp. per Lord Hoffmann at pp 1234-5.” 26. In Cotswold Developments (Construction) Ltd v Williams [2006] IRLR 181 the EAT (Langstaff J presiding) at [53] postulated a test of whether the individual actively markets their services to the world in general or, conversely, works as an integral part of the principal’s operations – the so-called integration test. In James v Redcats (Brands) Ltd [2007] ICR 1006 the EAT (Elias P) considered another test discussed in the authorities, the so-called dominant purpose test. He suggested at [59] that that 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?” But ultimately there is, he opined at [68], “no shortcut to a considered assessment of all relevant factors.” 27. In Clyde & Co LLP v Bates van Winkelhof ]2014] UKSC 32; [2014] ICR 730 Lady Hale (with whom Lords Neuberger and Wilson agreed) reviewed these and other authorities, including Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005; [2013] ICR 41. At [18] she noted that there Maurice Kay LJ had pointed out that neither the integration test nor the dominant purpose test purported to lay down a test of general application. At [19] she went on to agree with him that there is “not a single key to unlock the words of the statute in every case.” She added that “[t]here is no substitute for applying the words of the statute to the facts of the individual case.”[120]In Ter-Berg a submission was made in relation to the statement of Lewis LJ in Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229 in relation to the relevance of the concept of mutuality of obligation in relation to worker status: “37. First, Mr Jenkins argued that, as a matter of law, neither the concept of mutuality of obligation, nor the control test has any relevance at all to the question of whether an individual who is not an employee is a worker. In support of his submission that mutuality of obligation is of no relevance at all when considering whether an individual has worker status, Mr Jenkins relied upon the statement of Lewis LJ (with whose speech Moylan and Elisabeth Laing LJJ concurred) in Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229; [2022] ICR 755 at [48] that “[t]here is no need, and no purpose served, in seeking to introduce the concept of an irreducible minimum of obligation in the way defined by the respondent.” 38. As to that, the claimant in that case served periodically on fitness-to-practice panels of the respondent. As described at [5] at [6] the respondent had submitted that, as the claimant was not, under his overarching contract, obliged to accept any given assignment, there was no mutuality of obligation. However, the claimant contended that, in respect of panel hearings that he did undertake, all the elements of the worker definition were satisfied. At [48] Lewis LJ described how the tribunal found that, in addition to the overarching contract, there was a further contract formed each time the claimant was offered and accepted a panel hearing, the content of which satisfied the definition of a worker. Having regard to that there was “no purpose served” by the concept of an irreducible minimum relied upon by the respondent, which related to whether the overarching contract had the requisite content. It is clear from the conclusions at [57], [58] and [61] that all that the claimant was seeking at that point was a finding that he was a worker in respect of each hearing that he undertook. I conclude that Lewis LJ was not, in that sentence at [48], advancing any general proposition of law as to what features it is essential that a contract have, in order for it to confer worker status.” 46. As to control in Ter-berg the EAT stated: “40 As the authorities to which I have referred make clear, ultimately the answer to whether the individual was or was not a worker, applying the words of the statutory test, will depend on the tribunal’s evaluation of the picture painted by all the relevant facts and circumstances in the given case. Further, as was discussed in Byrne Bros, the nature or degree of control may be one factor that is regarded as relevant to the assessment of worker status, just as it is to the assessment of employee status. However, it is important to remember that “control” is itself a word that may be used to refer to different features, and the context of consideration for the purposes of the worker definition is different from that of consideration when deciding whether an individual is an employee. That takes me to Mr Jenkins’s next significant line of argument... ... ...43. As to control, while, as I have discussed, the concept may be regarded as relevant to worker status, as well as to employee status, a finding that the nature or extent of control is insufficient for the purposes of employee status, while potentially relevant, is not necessarily determinative of the issue of worker status – because of the different legal context and (as it was put in Byrne Bros) the lower “pass mark”...” Discussion and conclusions What was agreed contractually between the Parties?
Discussion and conclusions
[121]Between late October 2022 and the end of January 2023 the Parties had an informal verbal agreement that the Claimant would do some ad-hoc video editing. There was no specific agreement between the Parties at that time about payment for that work. Therefore, payments were made on an informal basis, at Miss Sieckmann’s discretion in the amounts paid. There was no correlation to the amount of time worked or the amount of revenue generated from it. Prior to late October 2022, there was no written or verbal agreement between the Parties at all for work or payment.[122]From February 2023 until 27 March 2024 I have concluded that there was a verbal agreement between the parties as follows:(a) The Claimant would receive 40 per cent of the revenue generated from videos he had edited on Vimeo and Patreon. The Respondent would retain the remaining 60 per cent.(b) There was no contractual agreement at all between the parties that the Claimant would receive any payment in relation to YouTube revenue.[123]From April 2023, the Parties agreed that the Claimant would also receive 40 per cent of the revenue generated from the Tarot Course that he helped to produce on Teachable. In October 2023, the parties agreed that the Claimant’s share would reduce to 20 per cent in relation to the Tarot Course.[124]The parties agreed that this business arrangement would end in the event that their romantic relationship came to an end. I find that this happened on 16 February 2024. However, the Parties subsequently agreed that the Claimant would continue to provide video editing until the Respondent terminated that agreement with immediate effect on 27 March 2024. Employment status of the Claimant[125]When determining employment status, the Tribunal is reminded of the importance of using a factual, multi-faceted approach. This includes not taking the legal principles as a checklist, evaluating factors as outlined in the case law and standing back to consider the overall picture. Intention[126]Although the details were disputed, it was agreed that there was an oral agreement between the parties. The contract was formulated in the context of the parties also being in a romantic relationship. The agreement was never put in writing.[127]I considered the parties intentions in entering into the business relationship. This was initially because Miss Sieckmann wanted to support the Claimant after he had experienced personal trauma to provide some focus. The Claimant had sought to be a partner of the Respondent at the outset and again thereafter, but that was never agreed. It was clear, from this that the Claimant did not want to be an employee or worker. This was supported by the comments he made at the time and his interpretation of the arrangement after it had concluded, for example, in the solicitors’ letter send on his behalf. I concluded that it was the parties’ joint intention at the outset of the arrangement that they would enter into a commercial arrangement and that the Claimant would be self-employed.[128]With that intention in mind, noting it is not a determining factor in assessing employment status, I have in any event considered what the reality of the working relationship was and whether it changed over time. Mutuality of obligation[129]The Tribunal considered the requirement of mutuality of obligation, a key element in establishing a contract of employment. I find that the Claimant had no obligation to be available for work or accept work offered and the Respondent had no obligation to offer it. The amount of work varied considerably as did the amount of payment. There was no obligation to pay the Claimant for the work specifically undertaken per se, the obligation only arose if the Respondent received relevant revenue. Although the Claimant did receive regular payments they were purely determined by any revenue generated. In effect, the Claimant took the commercial risk along with the Respondent. This meant he could potentially be entitled to no payment and also that he could benefit from greater business performance.[130]The method of payment was thus a profit share opposed to a salary or payment for time spent and was more typical of self-employment than a traditional employer-employee relationship where an individual is entitled to payment regardless of business performance.[131]Accordingly, I do not find that there is sufficient mutuality of obligation to establish an employment contract. The absence of guaranteed remuneration, the profit-sharing mechanism, the opportunity to benefit from business performance and the lack of obligation to offer and accept work collectively indicate that the Claimant was engaged on a selfemployed basis rather than as an employee. Control[132]I have considered how the parties conducted themselves. I find that the Claimant exercised significant autonomy in managing the video editing. I rejected the suggestion that Miss Sieckmann was sat on his shoulder directing him. It is clear that Miss Sieckmann did participate in video editing I concluded that this was not sufficient so as to determine of control. I rejected the suggestion that Miss Sieckmann controlled every element of the Claimant’s work, to do so would have rendered him useless which lacks all credibility.[133]The Claimant did not receive holiday pay or other benefits, he did not need permission to take holiday or time off for any reason. This was more indicative of self-employed status.[134]The Respondent did not impose any restrictions on the Claimant working for others. Nor was there any consideration that he was subject to the remit of disciplinary conduct or management.[135]The nature of the parties conversations, which were provided to the Tribunal, about work-related matters are also not reflective of the Claimant being under the Respondent’s control or a subordinate employee.[136]The Claimant’s hours were flexible in that he was not obliged to work a set number of hours, date or periods. The Claimant had substantial control over his working hours, when he worked, holiday and time off arrangements and his entitlement profit-sharing suggests that his motivation for carrying out tasks was not as a subordinate employee but as an individual with a vested commercial interest in the success of the Respondent (if it made more money he would receive more). The Claimant retained a level of control and financial interest that is inconsistent with traditional employment status and aligns more with being a self-employed contractor, Therefore, I do not find that the Claimant was working under sufficient control of Miss Sieckmann reflective of employment status. Personal Service[137]In the absence of a written contract, determining whether personal service was a requirement or whether the Claimant had a right to substitution presents some difficulty.[138]Miss Sieckmann stated that the Claimant could provide a substitute in theory but this was not exercised and would defy the purpose of the arrangement, which was to help his refocus. I considered that on balance, there was a requirement for the Claimant to provide personal service. Although Miss Sieckmann stated a substitute could have been sent it was clear that this had not been contemplated by her, discussed or considered during the arrangement. In addition, her evidence that this would have defied the purpose of the agreement undermined the suggestion that a substitute could have been used. It was also entirely unclear from the evidence how this would operate (other than Miss Sieckmann covering the work) and how this would impact on the profit-sharing arrangement the parties were operating. I therefore did not hold confidence in Miss Sieckmann’s evidence in relation to this issue. I also note that there was no cross-examination of the Claimant on this issue by the Respondent and it somewhat surprisingly was raised by the Claimant in his crossexamination of Miss Sieckmann (although he was not asserting that he could have sent a substitute). Tax and NI[139]The Respondent did not deduct tax and national insurance, and the Claimant did not query this or the absence of payslips, P60 or other documentation. I rejected the Claimant’s evidence that he considered the Respondent was making deductions for tax and national insurance and concluded that he must have known that they were not doing so. I have found that he was asked directly whether he wanted to speak to the Respondent’s accountant about tax and whether he wanted to be an employee and he declined to do so. This all supported self-employed status opposed to employee status. Other factors[140]The Claimant is a professional Film Maker who has worked for Channel 4, the BBC and ITV. He has worked previously on both an employed and self-employed basis in this capacity.[141]The Claimant informed the Respondent that he was ceasing to work for her in February 2024 without any notice. There was no agreement as to notice between the Parties, and each could end the agreement at will. Thereafter, the parties agreed that the Claimant would continue to work for a month or two. I concluded this was more reflective of a commercial relationship and more consistent with self-employed status.[142]The Claimant asserted that he was entitled to ongoing “royalties” and referred to copyright in relation to the content he had edited, even to the date of the hearing. Given it was agreed that the engagement ended in March 2024, I concluded that this expectation was more consistent with a commercial relationship and self-employed status. In an employee situation, it would be more usual for entitlement to end with termination.[143]The Respondent provided the equipment that the Claimant used. This was on the face of it more supportive of employee status regardless of the fact of their romantic relationship.[144]The context of the whole business relationship was contingent on the romantic relationship, and this had been agreed by the parties. Whilst a romantic relationship does not prevent employee or worker status the context of this entire arrangement and the agreement struck for a profit share arrangement is more supportive of self-employed status. Conclusion on Employee Status[145]I have stood back to consider the evidence and the relationship between the parties overall.[146]I have concluded, having taken all the above factors into consideration, that the Claimant was not an employee of the Respondent within the meaning of s.230(1) ERA. In reaching this conclusion, I looked at the reality of the relationship between the Claimant and the Respondent and considered it to be a business agreement with a view to sharing the profits of the Respondent. I also concluded that the Claimant’s adoption of employment status was somewhat belated, following the ending of the relationship and was not reflective of his genuine views at the time he was involved with the Respondent. Indeed the Claimant actually rejected employment because he had wanted to become a formal partner. Conclusion on Worker Status[147]Whilst the above findings are relevant to this assessment, none are determinative and I have reminded myself that the boundary is pushed further in the purported workers favour in relation to worker status (Byrne at para 17).[148]By reason of the above decision, I also conclude that the Claimant is not a worker under s.230(3)(a) ERA because there was no contract of employment in place between the Parties, for the aforementioned reasons.[149]I have therefore gone on to consider whether the Claimant was a Limb B worker under s.230(3)(b) ERA. I have already concluded that there was a requirement for personal service. However, I also concluded that the Respondent was in effect a customer of the Claimant’s film making business. He was a film maker by profession and in that capacity had previously engaged in both employed and self-employed work. The whole arrangement between the parties overwhelmingly supported that they were operating as a commercial arrangement (opposed to worker status) which was supported by the payment share and arrangement, sharing the commercial risk and the general flexibility of the entire arrangement. I concluded that the provision of equipment by the Respondent did not somehow elevate or change the overall nature of that arrangement.[150]For these reasons, I find that the Claimant was neither an employee or a worker and the evidence presented aligns more closely with that of a self-employed contractor. Accordingly, the Tribunal has no jurisdiction to hear the Claimant’s claims and they are therefore dismissed. Case Management Orders[151]Case Management Orders made on 9 June 2025 are therefore revoked and neither Party needs to comply.[152]The provisional remedy hearing listed on 31 October 2025 is vacated. Approved by: