Mr A Crovetti v Fife Employment Access Trust: 8001990/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001990/2025Venue EdinburghHearing 15 May 2026
Between
Mr A CrovettiClaimantFife Employment Access TrustRespondent
Before
Employment Judge R KingMr B Napier for claimantKC for claimantMr L Anderson (instructed by Solicitor) for respondentDate 10 June 2026
JUDGMENT
The Judgment of the Tribunal is that the claimant was a worker of the first respondent in terms of section 43K 1(a) of the Employment Rights Act 1996.
REASONS
[1]The claimant has presented whistleblowing claims against all five respondents, the individual respondents being employees or board members of the first respondent.[2]This preliminary hearing has been fixed to determine whether the claimant was a worker in relation to the first respondent by virtue of section 43K(1)(a) of the Employment Rights Act 1996, which was introduced to extend the definition of worker in order to provide protection for agency workers in relation to victimisation for protected disclosures made while working for an end user. Preliminary issue[3]At the outset, the Employment Judge informed the parties that he had previously been a partner with HBJ Gateley Wareing and HBJ Claims Solutions, firms of which Mr Anderson’s firm, Jackson Boyd, is a successor. He explained that he had been a partner until 2011 but that he had no association with that firm any longer and had no knowledge of Mr Anderson or any of the respondents in the claim. In those circumstances both parties were content to proceed with the Employment Judge continuing to hear the case.
The relevant law
[4]The relevant provision for this preliminary hearing provides as follows: ‘’43K Extension of meaning of “worker” etc. for Part IVA. (1) For the purposes of this Part “ worker ” includes an individual who is not a worker as defined by section 230(3) but who— (a) works or worked for a person in circumstances in which— (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them, (b) contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise).’[5]Helpful guidance for Employment Tribunals dealing with the application of this section was provided by Mrs Justice Simler, the then EAT President in McTigue v University Hospital NHS Foundation Trust UKEAT/0354/15/JOJ. To avoid repetition that guidance is set out in the Discussion and Decision below. Witnesses[6]The Tribunal heard evidence from the claimant and from Mr Duncan Mitchell, the second respondent, who is the chief executive officer of the first respondent. A joint bundle of documents was also lodged and both parties provided helpful submissions at the conclusion of the hearing. Findings in fact[7]Having heard evidence, the Tribunal makes the following findings in fact in relation to the preliminary issue of worker status. Where there was a dispute, it reached a conclusion on the balance of probabilities. It is not the Tribunal’s intention to recite or to make findings in fact on every piece of evidence that it heard, since that would include facts that were ultimately irrelevant to its conclusion on the disputed issue to be determined.
Background
[8]The first respondent is a registered charity, which supports individuals with mental health conditions. The claimant is the sole director of Crovetti Associates Limited (‘Crovetti Associates’), a Project Management, Cost Management and Development consultancy, which works with its clients on construction projects.[9]These proceedings relate to a project undertaken by the first respondent to restore a historic building, the Silverburn Flax Mill in Leven, for community benefit and to raise funds for its own ends including running a community café there.[10]Following several years of planning, the first respondent secured national lottery funding for the project and having done so issued an invitation to tender for the restoration work on 1 June 2023 through the Public Contracts Scotland website.[11]Although contracts to provide services on the project would be between the first respondent and each contracting party the top-level governance for the project was in the hands of a Joint Sponsor Group, comprising directors of the first respondent, CIC (a management vehicle), and representatives from Fife Council, and Fife Historic Buildings Trust. Invitation to tender[12]In its invitation to tender, several different roles for the delivery of the project were identified in the ‘project brief’ and the proposed responsibilities associated with those roles set out there, the intention being that those who answered the invitation by tendering their services were able to offer to carry out specific roles within the project.[13]In relation to the role of project director the proposed responsibilities in the original project brief were as follows:• Single Responsible Owner;• Design champion;• Oversee updating of Business Case and project budget;• Oversee project organisation structure and progress reporting procedures;• Review risks with project team;• Resolve issues with stakeholders;• Periodic progress reporting to Local Area Committee and Community Councils;• Approve changes to project scope;• Oversee Post Project Evaluation. Crovetti Associates tender submission[14]On 10 July 2023 the claimant issued a tender submission and fee proposal to the first respondent on behalf of Crovetti Associates, offering his services in the role of project director for a proposed fee of £120,000 plus VAT, which was the fee indicated for that role in the invitation to tender.[15]It was proposed that the claimant would carry out the project director role, supported by an associate, Andrew Elmer, on specific activities that would benefit from Mr Elmer’s experience of Visitor Centre Operations.[16]The fee proposal also set out a table of proposed fees if additional services were required outwith the scope of the original invitation to tender, such services to be provided by other personnel from within Crovetti Associates.[17]The Crovetti Associates’ tender document dated 10 July 2023 was set out under various headings as follows: 1 Proposed approached/methodology 2 Our Team 3 Stakeholders Management: working with Trusts, volunteers and funders; 4 Sustainability and social responsibility; understanding of the key issues influencing historic environment projects in 2023 5 Case studies; 6 Fees; 7 References; 8 Insurances; Appendix A – CVs; Appendix B – Environmental Policy Statements; Appendix C – Health and Safety Policy Statement;[18]Only part 1 ‘Proposed approach/methodology’ set out in any detail the proposed strategy, which revolved around initially creating a Master Programme of ‘key activities, timeframes, milestones and critical path’ under various headings, which programme would be circulated and agreed with other relevant parties and stakeholders on the project.[19]On 7 August 2023, the claimant e-mailed the second respondent following a meeting he had had with him and Lorraine Bell (a manager within Fife Historic Buildings Trust who were represented in the Joint Sponsor Group) to discuss his proposed role in the project, explaining that - “I thought I’d highlight that if Crovetti Associates were to be appointed for the Project Director role, that I would deliver personally, the added value to the project and to FEAT is that if required Andrew Elmer in my team could bring valuable skills and expertise to help FEAT plan the management and operational side of the museum/tourist attraction…’’[20]It was important to the claimant that his own personal service was emphasised as this was a project on which he would be working “client side” and therefore embedded in the first respondent’s business during the currency of the project. The meeting on 16 August 2023[21]On 16 August 2023, an online meeting took place between the claimant, the second respondent and Lorraine Bell. During that meeting, the second respondent and Ms Bell informed the claimant that certain additional responsibilities, over and above those set out in the original project brief document, were to be included in the role of project director.[22]In the claimant’s view, the additional responsibilities proposed would impact on the time that he would need to personally devote to the project. However, he felt unable to object or negotiate, and he accepted the revised responsibilities without raising any concerns.[23]On the other hand, Mr Mitchell did not believe the additional responsibilities would in practice impact on the level of time to be provided by the project director or the level of responsibility overall.[24]Later that same day Lorraine Bell sent an email to the claimant and to Mr Mitchell enclosing the updated version of the project management structure with the additional responsibilities set out in an updated project brief and with the claimant now identified in the project brief as the project director.[25]In terms of the first respondent’s updated project brief the project director’s revised responsibilities would now be as follows:• Single Responsible Owner;• Chairs IPT meetings;• Design champion;• Oversee updating of Business Case and project budget/programme;• Oversee project organisation structure and progress reporting procedures;• Reports to JSG – inc Stage plans/Exception Reports?• Client variation control• Review risks with project team;• Revolve issues with stakeholders;• Periodic progress reporting to Local Area Committee and Community Councils;• Approve changes to project scope;• Oversee Post Project Evaluation;• Duties falling between PD and PM (and sometimes CPM)?• Troubleshooting with Fife Council – EG advance grant payments;• Leases/LTOs;• Insurance;• Standard securities;• Transfer of building ownership. Acceptance of the Crovetti Associates tender[26]On 17 August 2023, the second respondent wrote to the claimant on behalf of the first respondent accepting the Crovetti Associates tender submission.[27]In his letter, the second respondent explained that “I am delighted to confirm that we would wish to engage your services for the project, as set out in the project brief.”[28]Agreement having been reached, the claimant worked on the project ‘client side’ as project director. Crovetti Associates’ standard terms and conditions document[29]On 15 November 2024, the claimant sent an email to the second respondent attaching the standard Terms of Appointment operated by Crovetti Associates. These had not been incorporated in the original terms of engagement. He did so at this time because of his concerns about the way in which the project had been managed and about risks that he perceived to his own and the Crovetti Associates’ reputation and insurance position.[30]In his covering e-mail he explained that – ‘’Hi Duncan, As agreed with you and Dougie yesterday, I’m sending you my standard Terms for signature. The terms are the same document I had sent you at the time of my appointment – when instead you preferred to appoint me by letter since every other consultant had been appointed in this way. It’s important that we have a signed contract in place, also because my PI insurance only covers me if I provide services under a signed contract, and the Chartered Institute of Buildings (CIOB) of which I am a Full Member expects that I operate under a contract’[31]These Terms of Appointment referred to the Scope of Services as being ‘As per Invitation to Tender for Project Director for Silverburn Flex Mill Renovation, Leven Fife, June 2023’, without any further reference to those services or how they were to be carried out.[32]The remainder of the terms dealt with fees, payment, intellectual property, termination, liability limitations, ius quaesitum tertio, rights of affiliates and associates, severance, insurance, variations, assignment, waiver, nonsolicitation, notices, corrupt gifts and payment of commission, disputes, governing law, and adjudication.[33]The Crovetti Associates terms and conditions were accepted by the second respondent on behalf of the first respondent on 18 November 2024. Allegations about the claimant’s conduct and termination of the contract[34]On 12 February 2025, the fourth respondent, now the chair of the first respondent, sent an email to the claimant in which she informed him that – “There has been a concern raised around your conduct which only myself and one board member from the CIC are aware of for now. My main objective tomorrow is to inform you of what has been raised and provide you with any support that may be required.”[35]On 17 March 2025, the second respondent wrote to Crovetti Associates terminating the contract between the first respondent and Crovetti Associates. The contract was terminated with the contractual notice required by the standard form Terms of Appointment issued by Crovetti Associates to the first respondent and accepted on 18 November 2024. Submissions Claimant’s submission[36]On the claimant’s behalf, Mr Napier submitted that the issue to be determined was whether the claimant was a worker in terms of the extended definition found in section 43K(1)(a) of the Employment Rights Act 1995 in circumstances where(1) the standard definition of worker found in section 230 did not apply and(2) the absence of a contract between the claimant and the first respondent was not fatal to the application of section 43K(1)(a) following the judgment of Lord Fairley in W v Highways England & others [2025] EAT 18.[37]In Mr Napier’s submission, the relevant facts were that -• the claimant had been supplied to do the work for the first respondent by a third person, Crovetti Associates, who were in law a separate person to the claimant.• The terms on which he had been engaged to work as a project director were (in practice) substantially determined by the first respondent in terms of the original brief produced by the first respondent as part of the invitation tender and the modifications that were made on 16 August• The modified version of the project brief had identified the claimant as the project director and specified in detail the range of responsibilities that went with his role.[38]In Mr Napier’s submission, the claimant did not himself set the terms under which he was engaged to work as project director. Rather, the conditions and responsibilities that were associated with his role were set by the first respondent in the invitation to tender and in the project brief documentation. Those terms included the maximum budget of £120,000 for the engagement, and the start and finish date for the project.[39]Alternatively, the terms on which the claimant was engaged were practically and substantially jointly determined by the first respondent and by Crovetti Associates as parties to the contract, which would also bring the claimant within the scope of the definition of worker found in section 43K(1)(a).[40]Mr Napier also drew the Tribunal’s attention to the judgment of EJ Brian Doyle, the former president of the Employment Tribunals, England and Wales, in Moon v Lanarkshire & South Cumbia NHS Foundation Trust 2414248/2021 at paragraph 141: “So far as section 43K of the 1996 Act is concerned, as noted above, the section extends the protection of the whistleblowing provisions. The tribunal in interpreting and applying it should, in case of ambiguity, seek a solution applying that extension rather than limiting it.”[41]In Mr Napier’s submission, the claimant was plainly a worker having regard to the guidance set out by Mrs Justice Simler in McTigue v University Hospital NHS Foundation Trust UKEAT/0354/15/JOJ and was eligible to pursue his whistleblowing claim. The respondents’ submission[42]On the respondents’ behalf, Mr Anderson submitted that it was clear from the claimant’s evidence that he was attempting to paint a picture of his being a worker when in truth he was an experienced self-employed contractor in this area and was aware that he did not fit the definition of worker.[43]He drew the Tribunal’s attention to Day v Lewisham and Greenwich NHS Trust [2016] IRLR 415, in which the EAT had held that the purpose of the act was to extend the meaning of worker to a limited category, which did not include the circumstances of the present claim.[44]Further, in Mr Anderson’s submission, the claimant had another route to remedy either in the civil or commercial courts. In those circumstances, his legal rights would not be prejudiced by not being able to pursue a claim in the Employment Tribunal.[45]In Manning v Walkers Crisps Investment Management [2023] EAT 79 the EAT had said that the provisions had been extended to protect vulnerable people and a Tribunal should take account of the vulnerability of the individual. In his submission, the existence of the other remedy available to the claimant meant that he was not a vulnerable person.[46]Having regard to the guidance in McTigue, Mr Anderson’s submission was that the claimant worked for Crovetti Associates and not for the first respondent. In practical terms the claimant was Crovetti Associates. He was not introduced by a third party because he was that third party.[47]Further, the terms of the contract had not in practice been substantially determined by the first respondent. In practice, the terms under which Crovetti Associates worked were determined by the claimant and by the Joint Sponsor Group who oversaw the project. The statutory definition in section 43K(1)(a) had not been met.[48]Mr Anderson also referred to the case of Stojsavljevic and another v DPD Group EAT 0118/20 in which the individuals’ unfettered right of substitution had been a strong feature of the claimants having been found to have selfemployment status. As the claimant also had such a right, that also pointed to his self-employed status. Discussion and decision[49]As set out above and as referred to by both parties in their submissions, the guidance of Mrs Simmler in McTigue should be followed by an employment tribunal faced with the question of determining worker status in terms of this particular provision. Applying that guidance the Tribunal makes the following findings.[50](a) For whom does or did the individual work? The Tribunal is satisfied that the claimant worked for both Crovetti Associates, the company in which he was sole director, and for the first respondent with whom he worked “client side” on the project day to day.[51](b) Is the individual a worker as defined by s.230(3) in relation to a person or persons for whom the individual worked? If so, there is no need to rely on s.43K in relation to that person. However, the fact that the individual is a s.230(3) worker in relation to one person does not prevent the individual from relying on s.43K in relation to another person, the respondent, for whom the individual also works. It was common ground that the claimant was not a worker for the first respondent in terms of section 230 (3) of the Employment Rights 1996.[52](c) If the individual is not a s.230(3) worker in relation to the respondent for whom the individual works or worked, was the individual introduced/supplied to do the work by a third person, and if so, by whom? In law, the claimant is a separate person from Crovetti Associates. On the evidence presented, the Tribunal is satisfied that he was supplied to the first respondent by Crovetti Associates in terms of its tender submission, which proposed that he be appointed project director.[53](d) If so, were the terms on which the individual was engaged to do the work determined by the individual? If the answer is yes, the individual is not a worker within s.43K(1)(a). (e) If not, were the terms substantially determined(i) by the person for whom the individual works or(ii) by a third person or(iii) by both of them? If any of these is satisfied, the individual does fall within the subsection. (f) In answering question (e) the starting point is the contract (or contracts) whose terms are being considered. (g) There may be a contract between the individual and the agency, the individual and the end user and/or the agency and the end user that will have to be considered. (h) In relation to all relevant contracts, terms may be in writing, oral and may be implied. It may be necessary to consider whether written terms reflect the reality of the relationship in practice. (i) If the respondent alone (or with another person) substantially determined the terms on which the individual worked in practice (whether alone or with another person who is not the individual), then the respondent is the employer within s.43K(2)(a) for the purposes of the protected disclosure provisions. There may be two employers for these purposes under s.43K(2)(a) ERA 1996.’ The Tribunal was satisfied that the terms on which the claimant was engaged to do that work, were not determined by him. Rather, having regard to the contracts between Crovetti Associates and the first respondent, specifically –• The first respondent’s invitation to tender document dated 1 June 2023, which set out the original proposed responsibilities of the project director – the ‘project brief’.• Crovetti Associates’ offer in response to the tender dated 10 July 2023• The updated ‘project brief’ setting out the amended responsibilities of the project director, dated 16 August 2023• The first respondent’s letter to Crovetti Associates, dated 17 August 2023 accepting its tender• The Crovetti Associates standard terms and conditions, accepted by the first respondent on 18 November 2024 they were determined by both Crovetti Associates and the first respondent.[54]In McTigue, the EAT held that - ‘’… since both the supplier and the end user can substantially determine the terms and the subsection does not invite any comparison between how substantially the supplier of the individual determines the terms compared with how substantially the end user does so, there is no room for an interpretation of s.43K(1)(a)(ii) based on who determined “the majority of the terms” or “the most significant terms” as between the agency supplier and the end user. Where two parties (other than the individual) have between them determined the terms upon which an individual worked but have done so to different extents, each might nevertheless have substantially determined the terms.’’[55]It was not in dispute that the price and duration of the contract, and the responsibilities associated with the project director role were determined by the first respondent in the project brief within its 1 June 2023 invitation to tender.[56]While there was some dispute over whether the additions to the first respondent’s project brief on 16 August 2023 were substantial in terms of the additional time that the project director would need to devote to those tasks or the weight of the additional responsibility associated with those tasks, it is not in dispute that they were added by the first respondent.[57]It was also not in dispute that Crovetti Associate’s standard terms and conditions were incorporated into the contract between them and the first respondent on 18 November 2024 and that the notice provisions therein were observed on termination of the engagement.[58]Having regard to the terms of each of the contractual documents the Tribunal finds that both Crovetti Associates and the first respondent in practice substantially determined the terms of the contract, and that the claimant therefore falls within the meaning of worker in terms of section 43K(1)(a) of the Employment Rights Act 1996.[59]In reaching this determination, the Tribunal specifically rejects the respondents’ submission that the availability of another remedy for the claimant has any bearing on these proceedings, which he is entitled to bring in any event in light of his worker status in terms of section 43K(1)(a).[60]It also rejects the respondent’s submission that any right of substitution has any bearing on the determination as to whether the claimant was a worker in relation to the first respondent in terms of the relevant provision. Final hearing[61]Date listing letters should now be issued to the parties with a view to fixing a final hearing.