The claimant alleged that he had suffered unlawful deductions from wages and agreed that for tax purposes he was treated as self-employed. Nevertheless, he asserted that he was a worker within the meaning of Article 3(3) of the Employment Rights (NI) Order 1996. The respondent disputed this saying that the claimant was a self-employed contractor and was not entitled to be treated as a worker.

The tribunal made clear that the case of Jivraj v Hashwani [2011] UKSC 40 is considered the seminal authority on the definition of a worker who are a class of persons who "although they are not employees, they are subordinate to the person for whom they work". The tribunal noted that the two relevant factors as to whether a claimant is a worker or not are:

(1) whether he is under an obligation personally to do work;

(2) whether the person for whom the work is done was a client or customer of the business being run by the individual.

The tribunal considered both these points against the factual matrix of the case and held that the claimant was a "worker" within the meaning of the legislation.

PRACTICAL LESSONS

Of note in this judgment is the echoing of the words of Lord Justice Elias in the case of James v Redcat (Brands) Ltd [2007] IRLR 296 when he said that a lack of any mutual obligation when no work is being performed is of little, if any, significance when determining the status of the individual when work is performed. This is very important in situations where persons are 'employed' intermittently and the question arises whether there is a contractual relationship in the non-working period.

The clear answer from the case-law, and affirmed here, is that minimal weight is to be attached to those periods, since a finding otherwise would undermine the protection provided in the legislation. Casual workers, such as waiters, may fit within this category and the fact that no employment status exists between the 'gaps' does not preclude a finding of employee status during the period of work.