WESTMINSTER PARTITIONS & JOINERY v MR S BARRINGER [2003] UKEAT 0505_03_1509

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0505_03_1509Case No Appeal No. EAT/0505/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
WESTMINSTER PARTITIONS & JOINERYAPPELLANTMR S BARRINGERRESPONDENT
Before
His Honour Judge D SerotaDate 15 September 2003
[1]APPEARANCES For the Appellant MR COLIN DEEHAN (Representative) For the Respondent MR S BARRINGER (the Appellant in Person) HIS HONOUR JUDGE D SEROTA QC This is an appeal by Westminster Partitions & Joinery Ltd, represented today by its Director, Mr Deehan, in relation to a decision of the Employment Tribunal, sitting at Watford on 7 January, chaired by Mr R Cassel.[2]Mr Barringer is a self-employed carpenter and he had spent a considerable amount of time, some 11 months, working for Westminster Partitions, we believe at Canary Wharf. After he had ceased working for Westminster Partitions he was advised, quite correctly, that he might have a claim in relation to holiday pay under the Working Time Regulations , because, even if not an employee of Westminster Partitions, he might have been a "worker" within the definition in the Working Time Regulations .[3]There were a number of factors referred to in his Originating Application which supported his case that he was a worker. On the other hand, before coming to a conclusion, it seems to us that it is necessary for the Employment Tribunal to consider carefully whether in fact someone who is self employed and provides some of his own tools can in fact properly be considered to be a worker. We draw attention to the passage in Harvey on Industrial Relations. The Working Time Regulations apply to a worker, the definition is broader than simply an employee employed under a contract of employment and extends to include anyone:
"…who has entered into or works under … (b) any other contract, whether express or implied and…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"
[4]Whilst this definition would exclude the genuinely self-employed in business on their own account, typically having their own tools and invoicing their customers or clients with their services, it is broad enough to apply to agency workers and freelancers.[5]Mr Deehan relies on guidance given by the Department of Employment as to the definition of workers and in a leaflet that they distribute in which it tells you who a worker is but goes on to say this:
"If you are self-employed, running your own business and are free to work for different clients and customers, these regulations do not apply to you."
[6]Mr Deehan's case is that Mr Barringer was in fact running his own business, was free to work for different clients and customers, albeit he had spent a great deal of time working for Mr Deehan's company. All that the Employment Tribunal had to say was: 6 "It was our unanimous decision that the Applicant fell within the definition of "worker" for the purposes of the regulations. It is immaterial that he was not employed under a contract of employment."[7]These are matters that require to be weighed up by the Employment Tribunal, all the more so as the area of law is technical and they had before them two litigants in person. It is regrettable, therefore, that in the passage we read from their Extended Reasons they made no attempt whatever to explain what factors had led them to the conclusion that Mr Barringer was a worker and why they rejected Mr Deehan's claim that he was in fact in business on his own account.[8]We regret to say that the Employment Tribunal in this case has failed both parties because it follows from our decision that the matter must be remitted, we think to be heard by a differently-constituted Employment Tribunal, to deal with the issues and hopefully to explain carefully to the parties why it is that they come to the conclusion that Mr Barringer was or was not a worker within the meaning of the Regulations.[9]It is with regret, therefore, because we are conscious of the fact that the parties are having to attend the Tribunal on three rather than one occasions, we must allow this appeal and remit the matter to be heard by a differently-constituted Employment Tribunal.