The claimants in this case worked within the construction industry.  The Tribunal noted that it was not uncommon that those involved in bricklaying may work in ‘gangs’ of two or three.  The first claimant started working on the respondent’s sites in 2015 as a bricklayers' labourer and worked in a ‘gang’ with a bricklayer with whom he had worked before with a different company.    In 2018, the bricklayer the claimant had been working with left and the claimant asked the Respondent’s managers whether he could carry on working on their site and he named a couple of individuals (the other two claimants) he said he could work with.   This was suitable for the respondent and agreed to it.

There was never any written documentation outlining the nature of the relationship between the claimants and the respondent.  The issue that arose before the Tribunal in the preliminary hearing was the classification of the claimants as to whether they were employed, workers or independent contractors. As there was no documentary evidence, it required an examination of the factual working relationship.

The Tribunal examined the nature of the work where it was found that the foreman had told the claimants which building plot they were working on and they were left with the drawings to get on with the work.  It was only if any query arose that they would then contact the site manager.  The three claimants were held to be ‘skilled’ and that the ‘gang’ were able to organise their own work.   There was no need for close supervision, except for site managers who monitored to ensure they were complying with health and safety.

The claimants sought to show employee status by virtue of being told that they would have to leave the company if they refused to take on a certain job.  However, in terms of this situation the Tribunal gave it little weight as it was not in the witness statements, nor was it put to the respondent’s witnesses.  The Tribunal also examined that the company had insurance covering the claimants’ work, that it had provided some of the tools, as well as hi-vis jackets.  However, the hi-vis jackets were largely supplied to sub-contractors who had forgotten their own and were not routinely handed out to bricklayers' gangs.  The working hours were also taken into account, where it was shown that there was a general view that they would work between 8am and 4pm but that there were occasions when they did not turn up or ‘knocked off early’.

It was also found that when it came to how they were paid, there was a negotiation between the gang and the respondent at particular points as to how much they were to receive.  It was then for the gang the split the allocation amongst themselves and the respondent had no input into that.  Perhaps most notably, whilst there was 20% taken off via the Construction Industry Scheme Payment, the three claimants all completed self-assessment tax returns and identified themselves as self-employed.

The Tribunal took these wide range of facts into account and applied to the dicta in Ready Mixed Concrete v Minister of Pensions and National Insurance (1967) which looks at the degree of control, the terms of the agreement and other factors, such as how tax is paid.  In taking into account the range of factors, it was found that there was no employment contract, nor was there a worker contract for the claimants.  Accordingly, the claims brought in relation to unfair dismissal and holiday pay were dismissed at this preliminary stage.

Practical Lessons 

This case demonstrates the wide range of factors that have to be considered when determining the employment status of an individual.  The Tribunal noted that the starting point is the written agreement but, as there was no written agreement here, it became a much more laborious task.   This case seemingly goes against the trend of finding employment status or worker status and is largely based upon the way in which the work was carried out, the independence in how it was carried out, and the hours, as well as the tax affairs.  It is also interesting that the Tribunal noted with disapproval the similarity between the witness statements of the claimants and that the first claimant was not fully aware of what was in the statement.  This demonstrates the importance, from the lawyer’s perspective, of ensuring that the witness completes their own witness statement and is fully aware of its content.
https://assets.publishing.service.gov.uk/media/5f994020d3bf7f169623cd4b/Mr_S_Agyemang_and_others_v_Stonebridge_Homes_Ltd_-Final_1802016.2020.pdf