The claimants in this case were father and son.  The father was a site foreman for the respondent and the son was a bricklayer.  The father had worked for the respondent for over 17 years whereas the son had only worked for less than a year.  In commencing the work, they had signed documents entitled ‘self-employed contract for services’.  This contract outlined that they could work when they wanted, they could refuse work when it was offered, they could leave the site without permission being needed and they could substitute their work with another individual with similar qualifications and experience.   The contract also outlined that the two individuals were to be responsible for their own tax affairs.  The dispute arose when they were both dismissed without notice.

The Tribunal looked at the factual context of the relationship between the claimants and the respondent.  In terms of the father, he had been in that position for 17 years and he had never made any attempts to substitute his work with another.  Furthermore, the Tribunal outlined that the substitution clause was unworkable due to the health and safety rules that would have to be followed.   In looking at the nature of the work undertaken, it was clear that the respondent controlled the hours of work, the type of work and how that work was to be performed.  For this reason, the Judge held that they were employees due to the ‘mutuality of obligations’ between the parties. As a result of this finding, it then allows both of the claimants to avail of rights under the Employment Rights Act 1996 (Employment Rights (NI) Order in Northern Ireland).

Practical Lessons

This case could be ground-breaking in the contracts that are regularly used in the construction industry.  It is very normal that those working in that industry will be on similar ‘self-employed’ contracts.   The Judge looking behind that contract to the context could see that the work was being controlled by the employer and this then led to an employment relationship.   With IR35 legislation coming in to the private sector both employers and workers should be cognisant of their relationship and this decision demonstrates the wide ambit at which the relationship will be examined and it is not just the label used in the contract.