Mr M Prosper v Stratus Security Ltd and Mr G Alner: 6013440/2024
EMPLOYMENT TRIBUNALS
Case No 6013440/2024
Between
Mr. M ProsperClaimant(1) Stratus Security Limited (2) Mr. G Alner SITTING AT: London CentralRespondent
Before
Employment Judge G Smart by CVPDate 5 December 2025
JUDGMENT
On hearing for the Claimant and Counsel for the Respondent:[1]The Claimant’s claims for whistleblowing and unfair dismissal are dismissed upon withdrawal by the Claimant.[2]The Claimant was not an employee of either Respondent either in accordance with the Employment Rights Act 1996, or at common law.[3]The Claimant did fall within the extended definition of employee within the Equality Act 2010 as a worker.[4]The Claimant was a worker of the First Respondent for the purposes of the claims brought under the Equality Act 2010, the Working Time Regulations 1998 and the Employment Rights Act 1996.[5]The Second Respondent did not engage the Claimant in any personal capacity.
[2]The Claimant brings claims of: 2.1. Race Discrimination; 2.2. Unlawful deduction of wages; 2.3. Unpaid holiday pay; 2.4. Unpaid notice pay/breach of contract.[3]This claim was listed for a preliminary hearing to take place over two days to determine employment status.[4]The issues were agreed between the parties before hearing evidence by day two of the hearing. It was agreed that I needed to determine the issue of whether the Claimant was an employee at common law for the purposes of the breach of contract notice pay claim, an employee or worker in accordance with the Equality Act 2010 for his discrimination claims, a worker in accordance with the Employment Rights Act 1996 for the purposes of the unlawful deduction of wages claim or a worker for the purposes of his holiday pay claim made under the Working Time Regulations 1998.
The Law
[5]The starting point for determining employment status is always to look at the wording of the statute. This differs depending on the statute relied upon.[6]The Employment Rights Act 1996 defines employee in section 230: “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.(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.(5) In this Act “employment”— (a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (b) in relation to a worker, means employment under his contract; and “employed” shall be construed accordingly.”[7]For the Equality Act 2010, the relevant section is s83 in Part 5 Work, which states where relevant: “83 Interpretation and exceptions (1)This section applies for the purposes of this Part. (2)“Employment” means— (a)employment under a contract of employment, a contract of apprenticeship or a contract personally to do work; ….”[8]For the purposes of the Working Time Regulations 1998, the relevant regulation is Regulation 2 that states where relevant: ““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;”[9]The definition of worker for the purposes of the Working Time Regulations is therefore identical to that of the Employment Rights Act 1996.[10]There can be no substitute for applying the words of the statute to the facts of each case Clyde & Co v Bates Van Winkelhof, [2014] UKSC 32. There must be a contract[11]There also must be a contract in existence between the parties for there to be a contract of service in the first place Cotswold Developments Construction limited and Williams [2006] IRLR 181. The Tribunal must decide whether the contract terms reflected the reality of the situation[12]After Autoclenz v Belcher [2011] UKSC 41, the reality of the situation must be the focus, not just the words of the contract even if they are agreed between the parties to be applicable.[13]A contract will be a sham if either both parties intend to deceive another Consitent Group Limited v Kalwak [2008] EWCA Civ 430, where both parties intended the clause not to apply Redrow homes (Yorkshire) Limited v Buckborough and Sewell [2009] IRLR 34 or where the written clause does not reflect the true relationship between the parties Protectacoat Firthglow Limited v Szilagyi [2009] EWCA Civ 98. The true relationship may of course change over time so the Tribunal needs to look at the contract at the time it is breached or a party wished to insist on performance of the clause. The Tribunal must then follow a structured approach to the statutory wording[14]Once it has been established that there is a contract between the parties, it is then for the tribunal to determined what type of contract it is. This is best done by following a structured approach to the relevant statutory wording Sejpal v Rodericks Dental Ltd [2022] EAT 91.[15]After the case of Johnson Underwood Ltd v Montgomery [2001] EWCA Civ 318, this case reiterates that the correct approach is to start by considering the Ready Mixed Concrete points of(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. Sufficient control is a necessary part of the irreducible minimum factors required for a contract of employment to exist.[16]For a contract to be a contract of service and therefore of employment, there must be the following core features: 16.1. The requirement to do the work personally 16.2. Mutuality of obligation; 16.3. A sufficient degree of control; 16.4. Overall the provisions of the contract are consistent with it being a contract of employment. This will involve weighing the factors for the contract being one of employment and the factors that appear to be against it being a contract of employment.[17]Points 1 and 2 make up the test at i) in Ready Mixed Concrete. The contract must not be one where the employer is a customer or client of the alleged employee or worker[18]The tribunal is obliged to make a finding on this point for either s230 Employment Rights Act or s83 Equality Act because if the relationship is a business one where the individual is in business on their own account with the alleged employer being a client or customer, that is fatal to both employee and worker status Pimlico Plumbers Limited v Smith [2017] EWCA Civ 51 at paragraph 48 and Bates Van Winkelhof at paragraphs 31 and 32. Provision of work personally[19]This requirement was reiterated in Express and Echo Publications Limited v Tanton [1999] IRLR 367. In this case, the unfettered power to send a substitute to do the work, meant that the contract could not be a contract of employment. The worker could send a substitute in this case whether he did not want to do or was unable to do the work provided to him.[20]Where there is a limited right of substitution, then all circumstances need to be looked at to decide if that meant the contract could not be a contract of employment MacFarlane v Glasgow City Council [2001] IRLR 7.[21]When applying the Tanton and MacFarlane cases, if there is an express clause that does not impose personal obligations on the worker it must be given effect unless it is either a sham, or there has been a variation of contract Staffordshire Sentinel Newspapers v Potter [2004] IRLR 752. Mutuality of obligation[22]Here for a contract of employment to exist (as opposed to simply a worker contract) there must be legal obligations between the employer and employee for the entirety of the duration of the contract Clark v Oxfordshire Health Authority [1998] IRLR 125.[23]In that case, the Claimant was a bank nurse. There were periods where she was offered no work. No retainer was paid for those periods. She was not obliged to accept work offered to her and the respondent was not obliged to offer her any work. The Court of appeal held that because there were no overarching obligations between assignments, there could not be a contract of employment over the entire period.[24]However, it also decided that there could be a series of individual assignments where during each one, the Claimant was an employee. The tribunal therefore needed to focus on what the situation was during each individual assignment was if no umbrella contract spanned the whole period.[25]A similar conclusion was reached in the case of Carmichael and another v National Power Plc [2000] IRLR 43. In this case the fact that one of the Claimant’s wanted the arrangement to be one of personal convenience rather than obliging her to accept work when it was offered, was a significant factor pointing against an overarching employment contract. It indicated an intention on the parties that there would be no contractual obligations during periods when the Claimants weren’t actually working.[26]Mutuality of obligations was often cited as being the obligation on the employee to provide their skill or expertise personally and for the employer to either pay for that work done or be required to offer work to be done. Therefore, consideration of this question was relevant to whether there was any contract at all after Cotswold Developments.[27]Then there is the enlightening case of HMRC v PGMOL [2022] 1 All ER 971. This case highlights the following key principles: 27.1. Where there are issues of intermittent work that give rise to whether the Claimant has sufficient continuity of service and or whether they were a worker or employee, this is where the case about whether there is an overarching contract of employment are relevant as per Laing LJ: “48 Where an employee works seasonally, or intermittently, he may need to establish, in order to show that he has the necessary continuity of employment, that his relationship with his employer was governed by an overarching contract during the periods when he is not actually working. It is necessary to recognise, when considering the reasoning in any decision of the EAT (or of the Court of Appeal on appeal from the EAT), that in some cases, the employee had to establish that there was an overarching contract between him and his putative employer which bridged any gap between periods of work, and that in other cases, he did not, and that the criteria which apply to overarching contracts do not necessarily apply to contracts for a specific piece of work or engagement. It is further necessary to recognise that the legal reasoning in these decisions may not apply across the board, and to recognise which parts of the reasoning were essential to the actual decision in the case, and which parts were obiter.” 27.2. Following McMeechan v Secretary of State for Employment [1997] ICR 549, in intermittent cases, the correct approach was to consider the mutuality of obligation point only in relation to an overarching agreement. This is because whilst a person was actually doing the work, whether or not they could accept or refuse work makes no difference. The worker was present and working. So, you could judge status in two contexts (the over all picture covering periods of work and no work, and the points at which the worker was actually performing work in an individual assignment or shift). The court also specifically refers to Clark and Carmichael above in support of this conclusion. 27.3. The concluding 3 propositions from the authorities were decided as being at paragraph 118: 27.3.1. The question whether a single engagement gives rise to a contract of employment is not resolved by a decision that the overarching contract does not give rise to a contract of employment. 27.3.2. In particular, the fact that there is no obligation under the overarching contract to offer, or to do, work (if offered) (or that there are clauses expressly negativing such obligations) does not decide that the single engagement cannot be a contract of employment. The nature of each contract is a distinct question. 27.3.3. A single engagement can give rise to a contract of employment if work which has in fact been offered is in fact done for payment. 27.4. This reasoning was upheld by the Supreme Court in HMRC v PGMOL [2024] UKSC 29.[28]Then there is the court of appeal case of Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229, which cited the PGMOL case with approval. Here it was decided, having reviewed all the previous authorities that the agreements in that case did not amount to a contract of employment overall because “…they did not impose any obligation on the Council to offer or pay for work or any obligation on the Claimant to provide any services…” at paragraph 46.[29]Looking at these authorities, mutuality of obligation is therefore only relevant to whether there was a contract at all or, in intermittent work cases, whether there were contractual obligations during periods of no work that were sufficient to create an overarching contract of employment for the whole of the period during which the worker was intermittently working.[30]When looking at individual assignments, the correct analysis is as per paragraph 122 of PGMOL “The correct analysis is that if there is a contract, the fact that its terms permit either side to terminate the contract before it is performed, without breaching it, is immaterial. The contract subsists (with its mutual obligations) unless and until it is terminated by one side or the other.” Sufficient Control[31]If there is a contract to provide services personally with mutuality of obligation to bring it into the employment field, it must then be decided whether there was a sufficient degree of control Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance [1968] 1 All ER 433. In the absence of sufficient control, there cannot be a contract of employment.[32]However, the fact there is sufficient control does not automatically mean the contract is one of employment. The totality of the facts and circumstances must still be looked at following the Supreme Court decision in PGMOL.[33]The correct question to ask here, is whether the relationship between the worker and alleged employer created general control rather than actual day to day control whilst on shift. White and another (respondents) v. Troutbeck SA (appellant) [2013] IRLR 949.[34]After Humberstone v Northern timber Mills (1949) 79 CLR 389: “The question is not whether in practice the work was in fact done subject to a direction and control exercised by any actual supervision or whether any actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions.” The overall picture[35]If there is a contract, personal service, mutual obligations where relevant and sufficient control, there may be a contract of employment.[36]The tribunal must then weigh up all relevant facts and circumstances to decide if any factors point towards or away from full employment and then come to an overall decision. This is point iii) in the Ready mixed concrete test.[37]When performing this more general analysis, once the other three tests have been satisfied so that there may be a contract if employment, the facts that can be taken into account are those which were or ought reasonably to have been known by the parties at the time HMRC v Atholl House Productions Limited [2022] EWCA Civ 501.[38]Some cases have focused on factors that distinguish an employee from a person in business on his own account. The sorts of details that may be relevant include whether (or how far) he: 38.1. is employed as part of the business of the employer and his work is done as an integral part of that business; 38.2. provides his own equipment; 38.3. hires his own helpers; 38.4. takes a degree of financial risk; 38.5. has responsibility for investment and management; and 38.6. has the opportunity of profiting from sound management in performing his task.[39]This list comes from the case of Market Investigations Ltd v Minister of Social Security [1968] 3 All ER 732, per Cooke J at 185.[40]In Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374, [1990] IRLR 236, [1990] ICR 409, the Privy Council said that the best expression of the test was that stated in the Market Investigations case: is the person concerned in business on his own account?[41]This test was again applied in Andrews v King (Inspector of Taxes) [1991] STC 481, [1991] ICR 846, where it was held that the essence of business was that it was carried on with a view to profit (whereas it was not open to the employee there to make an increased profit from the way in which he carried out his tasks).[42]The importance of this criterion has been emphasised by the Court of Appeal in Quashie v Stringfellow Restaurants Limited [2012] EWCA Civ 1735, [2013] IRLR 99. However, it is not a matter of running through these indicia as if they were an all-purpose checklist.[43]Part of the function of painting the picture is to determine what are the significant details in the instant case and to look at the whole arrangement.[44]Thus, in Hall (Inspector of Taxes) v Lorimer [1994] 1 All ER 250, [1994] ICR 218, a vision mixer who supplied no tools, equipment or money to his business and did not hire staff was still self-employed. The key factor was that he was a professional person who worked for a variety of people for short periods and was not dependent on any one paymaster (see also Suhail v Barking Havering and Redbridge NHS Trust [2015] All ER (D) 211 (Jul) (UKEAT 0536/13), where a similar analysis was applied to a locum working in the NHS).[45]In Pimlico Plumbers Ltd v Smith [2014] All ER (D) 88 (Dec) (UKEAT 0495/12) the EAT held that a plumber was not an employee, a key point being that he assumed the financial risk of non-payment by customers (a case that was subsequently litigated to the Supreme Court on the different issue of whether Mr Smith was a 'worker').[46]But we must not focus on any of these tests being decisive. The only decisive factors are tests 1 (contract and mutuality) and test 2 (sufficient control) from the Ready Mixed Concrete case.[47]When you get to test 3 weighing factors pointing toward or away from employment, the whole context, circumstances and factual matrix must be considered. The above factors are indicative only. AT COMMON LAW[48]The situation is very different when considering common law claims such as breach of contract and wrongful dismissal with no notice pay.[49]Wrongful dismissal and breach of contract are claims that are founded on the common law, not statutes like the Employment Rights Act.[50]The employment status of “worker” is not found outside of an act of parliament. It is therefore only informative to the general picture when determining common law employment status.[51]At common law, you are either an employee, or you are not. There is therefore no statutory wording that assists us in determining this test. We must turn to the case law and the tests laid out there, starting with Ready Mixed Concrete, and simply ignore any points of law in those cases that are unique to any statutory wording.[52]Indeed, it seems the only relevant wording to be considered when it comes to the law is the wording of the [Employment] Tribunals Extension of Jurisdiction Order (England and Wales) 1994, which gives the tribunal the power to consider breach of contract claims in limited circumstances. This order says: “Extension of jurisdiction 3. Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if— (a)the claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine; (b)the claim is not one to which article 5 applies; and (c)the claim arises or is outstanding on the termination of the employee’s employment.”[53]Clearly here, as long as the other jurisdiction criteria are met, the relevant paragraph is paragraph 3 (c). This section clearly reads that it is only applicable to employees.[54]Consequently, if the Claimant is not an employee at common law, then the Tribunal has no jurisdiction to hear the complaint and that jurisdiction lies with the County Courts.
Findings of fact
[55]The Claimant applied for a position within the First Respondent “R1” for a position of Asset Protection Officer and body guard.[56]He did so by submitting a CV at page 102 in the bundle. The CV was for the Claimant as an individual. It was not for a company or any other organisation the Claimant was associated with or ran.[57]The Claimant was appointed by word of mouth from a mutual contact.[58]Mr. Alner accepted that the Claimant was treated a little differently to his other officers because he was referred in this way rather than via cold contact from networks that he is a part of.[59]Mr. Alner stated that all other officers were engaged on a self employed basis and that was the usual way this sort of work was done in the industry. The Claimant suggested that in his experience, it was more 50/50 being employed to being engaged as a contractor.[60]There is insufficient evidence for me to conclude that body guards, asset or other similar types of protection officers were usually engaged as self-employed contractors. There is sufficient evidence for me to conclude that how the security officer was taken on depended upon the wants and needs of the clients to be protected and the agreement worked out between the hirer and the prospective security officer.[61]The Claimant worked protecting a high profile foreign national who was descried as being “ultra-high net worth”.[62]It was common ground that the CV was provided directly to Mr. Alner.[63]The Claimant then alleged this triggered an interview with Mr Alner and then a second interview where the Claimant was shown around the house of the client to show him where he would be working.[64]Mr. Alner disputed this suggesting the client interviewed the Claimant and took me to text messages at page 149 suggesting the client did a “trial” with a prospective contractor. However, that text message was about another person and not the Claimant as Mr. Alner accepted.[65]No such texts exist for the Claimant and there is indeed no documentation at all suggesting any sort of direct relationship between the Claimant and the client.[66]Consequently, I accept the Claimant’s evidence about the interview arrangements.[67]Mr. Alner accepted that he checked the usual documents that you would expect him to check such as passport and other ID before engaging the Claimant.[68]At page 105 in the bundle was a document called a “Subcontractor engagement agreement NDA”. This was not signed by the Claimant on the document itself.[69]However, In a pre-action letter allowed into the bundle by consent, at paragraph 4 of that letter, the Claimant argued that he had signed the non - disclosure agreement.[70]No other agreement was signed and the Claimant’s evidence about the agreement was that he could not remember whether he signed it or not despite saying in his own letter that he had signed it. I therefore find he signed it and it was the version of the document in the bundle.[71]The key points from the agreement are as follows: 71.1. It has R1’s branding on it; 71.2. It is signed by Mr Alner a director of the company; 71.3. It suggests that it is a subcontractor agreement; 71.4. Expenses will be reimbursed by R1 if mutually agreed in advance; 71.5. It suggests that the Claimant was to be responsible for his own tax affairs; 71.6. It has a non-compete clause in it at clause 4 which stated: “4. Conflict of interest During the period of its engagement by Stratus, the Contractor will not engage in work on the same contract for any business, firm, company, or entity, whether or not for compensation, which is in the profession or business of law, management consulting, auditing, special auditing, accounting, private investigations, purchasing consulting, security consulting or any other profession or business similar or identical to that of Stratus without informing Stratus in writing beforehand. The Contractor will not engage in any work which would constitute a conflict of interest, i.e. any personal, financial, family or other interest which might deter it from acting in the best interests of Stratus or might influence it to act in a way not in Stratus’ best interests. A conflict might arise from the opportunity of financial or other material gain but is not so limited. It includes the transmission of confidential information to others who may benefit thereby.” 71.7. Clearly here there was a requirement for the contractor to work in the best interests of R1, which is unusual in a self-employed contractor relationship. In his statement, Mr Alner stated that the Claimant was free to work for other organisations. That is correct, but he wasn’t completely free to do so. They needed to be organisations or individuals who didn’t compete with the best interests of the Respondent. 71.8. There are restrictive covenants about confidentiality in the agreement not only during the agreement but also after its termination at clause 6. 71.9. There is no right of substitution in the contract. 71.10. Appendix A to the Agreement covers invoicing and what information it should contain should an invoice be submitted.[72]When it came to uniform and equipment, Mr. Alner stated that the only requirement was that the Claimant and his colleagues wear dark colours and have a smart appearance. Chinos were acceptable as were suits, polo shirts and jackets.[73]There was a work phone provided for general use whilst on shift, but this was not a phone for the Claimant to take home with him after the shift ended. He had his personal phone to use as well as the “ops phone”.[74]It was common ground that no other equipment was provided.[75]When it came to payment of wages, the payment was in cash and was paid in an unusual way.[76]The client would sort cash payments for all the security officers into envelopes. The Personal Assistant of the client would then hand these payments to whichever officer was on shift at R1 to accept the envelopes in a black sports type bag and they would then be distributed to the officers.[77]This was akin to money being paid to R1 for the security services provided and the redistributed to the officers for the work they had done, albeit absent the much more common method of transactions, namely through a bank account.[78]I am not persuaded that any payments were made in cash or otherwise to any security officer without the cash first being handed from the PA of the client to a security officer engaged with R1 first and then redistributed.[79]I was taken to no invoices from the Claimant for the services he provided. He said he did not provide any invoices because that was not how his engagement worked and he was not a contractor.[80]It was indeed surprising that the Respondents could point to no evidence at all that invoices were requested as per the NDA agreement or submitted to trigger payment.[81]The Claimant also suggested that expenses were never paid which was common ground.[82]The work was organised by R1 on a rota basis with designated shifts. There were day shifts and night shifts.[83]The Claimant described that he and other officers would provide their availability dates to Mr. Alner. Mr. Alner would then try to distribute the shifts people wanted when they wanted them.[84]Whilst the Claimant did not accept that he could refuse work, I am not persuaded that was true. If it was, I believe it would have been more likely that a rota would just be organised and given to the officers, rather than asking for their availability each week. Indeed at page 185, Mr. Alner sent a text message to the team because officers were not picking up enough Saturday shifts as follows: “Night lads, just a small word of warning, you know I appreciate you all but gradually you're all diving the weekends which simply doesn't work You knew what this was and I would like to see abit more flexibility or will have to change the team.”[85]If the officers were forced to work whatever shifts they were given, then that text message would have been worded entirely differently in my judgment. Similarly, if the officers were being treated as self employed contractors then, in my judgment, the text would be worded differently too and would mention termination of contracts or breaching contracts, not changing the team and asking for flexibility.[86]Additional evidence supporting this is also in the bundle as text messages where Mr. Alner was asking if certain days were alright to rota the claimant to work. The Claimant then said ok for example at page 129.[87]At page 124, the Claimant refuses to work 31 December stating that he would do boxing day instead. If the Claimant could not turn down shifts allocated to him, there would be no need for Mr. Alner to have asked the Claimant if putting him down for a certain shift was ok.[88]If the Claimant did not work, he did not get paid. This was common ground.[89]There were no payslips provided to the Claimant. None were mentioned by either party and none were in the bundle.[90]If the Claimant could not do a shift he would be able to swap a shift with another contractor. However, Mr. Alner accepted this was not a completely unfettered right of substitution, any substitute had to be from the pool of approved officers the client had accepted and who had been vetted. The Claimant was not free to simply send anyone else who was also in the security profession in his stead. That makes sense because of the nature of the work. An ultra High net worth individual who left his country of origin in the circumstances described to me at the hearing that I will not go into in this public judgment, making them a potential political target simply would not accept any person being brought in to do the security who was unknown and unvetted, otherwise that would significantly increase the risk to them.[91]If the Claimant did something wrong, there was no evidence that there was any handbook of policies in place or a disciplinary procedure. The R1 via Mr. Alner would simply send text messages effectively saying change or you will be gone.[92]The Claimant’s engagement with Staxus was terminable upon 30 days’ notice as per the NDA agreement.[93]When his engagement did terminate, the Claimant argued that he was disciplined by Mr. Alner. However there is no evidence of that.[94]There is evidence in text messages between the client’s PA, Mr Alner and the client that when the Claimant failed to turn up for a shift without warning, the client simply said that the Claimant should be fired immediately at page 151.[95]Mr. Alner accepted in questioning that it was him who had been asked by the Client to fire the Clamant, which he then did and gave the instruction to terminate the Claimant’s contract.[96]Indeed, another text at page 188 shows that Mr. Alner was the decision maker for who stayed and who was terminated if the client wanted the officers to stop working for them. This text said: “Gents listen in Unfortunately I've had to let Magic Mike go. The reason [sic.] for this is that he hit the gate with [name]’s Lexus. That isn't the problem here the problem is he didn't mention it and it was found through another source. The client values honesty and integrity over ability and so do I. If you make a mistake you say something you don't wait for it to be found or "forget" or any other excuse there are none. Currently, due to my staff we have Lexus - scrapped hit the gate Maybach - paint scratched on garden wall Alphard - reversed into high curb smashed the bumper. I'm not asking for the perfect driver or operator, I'm asking you to give a fuck about the project and not just show up and go through the motions. This is also an event that could have been avoided if the other security staff was outside overseeing the vehicle entry like I've said a thousand times. Seen the gate was closing and opened it before the car hit. But again, lads being lazy and not working as a team and now look at the result. For the money you make I expect a higher standard across the board. I've had 38 people send CV's, there really is no shortage of guys looking for work. Currently we have no staff for Saturday and Sunday night shift. Please move your personal schedules around and help me out. Let me know if you're available If you are not available tell me why don't just ignore me”[97]This does not indicate any disciplinary procedure approach but also doesn’t indicate that the officers were at all times treated as self-employed contractors. I would not expect there to be a text to the team if a contractor had simply been asked not to provide any security services any more.[98]Even more significant is that Mr. Alner described the officers as “my staff”. That is a significantly unusual way to describe self-employed contractors if that is what the officers were.[99]The daily work of the officers was organised into teams of officers with different jobs to do covered by standard operating procedures for example at pages 109 – 112.[100]Each group would have an ops phone and specific patrols, searches, or vehicle duties to cover.
Discussion and conclusions
[101]I have considered all the arguments made by all the parties including all written submissions and statements in the bundle.[102]I am alive to the fact, and have taken into account, that the practical realities of the personal security industry, might not neatly fit within the confines of technical issues in employment law, such as the issue of determining employment status.[103]However, I provide my conclusions below. Contractual relationships[104]After Cotswolds Developments, I am not persuaded there was a contract between the client and the Claimant. The only evidence of any contractual relationship was that between R1 and the Claimant.[105]Similarly, there is no evidence of any contract between the Claimant and Mr. Alner personally. The reality of the contract[106]After Protectacoat, the contract between the Claimant and R1 does not reflect the reality of the relationship between R1 and the Claimant. I say this because: 106.1. Mr. Alner did not describe the Claimant or any other officer in text messages as contractors, he described them as his staff. 106.2. It was not indicative of a self-employed contractor relationship that R1 would have a contractual right to restrict which clients an individual could work for, namely by excluding the Claimant form working for anyone who went against the best interests of R1 when it came to competition. 106.3. The contract purported to require invoices for the Claimant to be paid, but no invoices were required and there was no evidence they were ever generated. I find that’s because they don’t exist. 106.4. Consequently, the contract was a sham and did not reflect the reality of how the Claimant was treated or regarded by R1. Customer and client[107]After Pimlico Plumbers and Bates Van Winkelhgof, I find that the relationship between R1 and the Claimant was clearly not that where either was a customer of the other. The customer was the client not R1 or the Claimant. R1 took the Claimant on to assist it in supplying services to the client as part of an organised team of officers, not as a group of competing contractors.[108]I now apply Sejpal, Montgomery and Ready Mixed Concrete. Personal service[109]After Tanton, there was no unfettered right of substitution here. The Claimant could swap shifts with other vetted and approved officers supplying services to the client, but could not send who he liked along to do his shifts.[110]Consequently, Macfarlane tells me I must look at all the circumstances to determine what employment status the Claimant had.[111]I conclude taking everything into the round that the Claimant was obliged to provide his services to R1 personally and that he could only swap shifts with other R1 officers much in the same way as employees would swap shifts at a factory or supermarket for example. Mutuality of obligation between shifts[112]After Clark, Carmichael, McMeechan and PGMOL, I am persuaded that the Claimant could decline to work any shifts he didn’t want to. That was clear from the findings of fact above about how the shifts were organised and that Mr Alner was struggling to cover weekend shifts in the text messages he sent to his officers.[113]Consequently, there was no overarching employment contract.[114]However, that did not prevent the Claimant from being an employee for each shift albeit an employment contract only for the duration of the shift. Control[115]I reminded myself that if there is an absence of sufficient control, there can be no contract of employment at common law or in accordance with the s230 Employment Rights Act 1996 test.[116]After considering the guidance in Humberstone and White, whilst I have found that there was clearly organisation of work into groups for the duties the client needed security assistance with, and whilst supervision and day to day control was present, I am not persuaded that there was sufficient control of the Claimant between shifts or where he was bound by policies and procedures of R1 to the extent that if either side broke those, grievance and/or disciplinary procedures would apply. The Officers, including the Claimant, would simply have their contracts terminated if they didn’t meet the client’s expectations.[117]There appeared to be no requirement in the contract between R1 and the Claimant, for R1 to find him any other work and apart from a broad standard operating procedure the client wanted, there were no other procedures or processes to follow in any formal way.[118]The burden of proof is on the Claimant to prove he was under sufficient control and he has not met that burden given the evidence I have been presented with.[119]I therefore conclude that this finding is fatal to Claimant being a common law employee or an employee under the Employment Rights Act 1996. Self-employed contractor or worker[120]Given I have found that the Claimant had to provide his services personally, that is fatal to the Claimant being a self-employed contractor rather than a worker for the s230 Employment Rights Act test and the s83 Equality Act test.[121]If I am wrong in that, there are also a number of other factors that point away from the Claimant being a self employed contractor. Such as: 121.1. Mr. Alner referring to the officers as “my staff”; 121.2. The lack of a requirement for invoices to be submitted before the Claimant was paid. 121.3. The lack of an unfettered right of substitution; 121.4. The requirement for the Claimant not to undertake work with anyone else who might compete with R1; 121.5. That fact that there is no evidence at all that the Claimant was in business on his own account other than providing his own work clothes and limited equipment; 121.6. The fact the contract signed by the parties envisaged the reimbursement of expenses; 121.7. The fact he was paid cash rather than by bank transfer, the latter of which, in my view, was the most likely way a contractor, whether a company or sole trader, would be paid.[122]Consequently, taking the whole circumstances of the relationship into account according to the evidence presented, the Claimant was a worker for the purposes of the Equality Act, Employment Rights Act and Working Time regulations.[123]This automatically makes him an employee for the purposes of the Equality Act 2010 given the extended definition of employee in that Act.
Conclusion
[124]The Claimant was not an employee at common law. Consequently, the Tribunal has no jurisdiction to hear his claim for notice pay. That claim is therefore struck out as having no reasonable prospects of success under rule 38.[125]The Claims of race discrimination under the Equality Act 2010, unlawful deductions of wages under the Employment Rights Act 1996 and for annual leave under the Working Time Regulations 1998 can be brought and will continue to trial. Judgment approved by: