Tribunals look at a number of factors when deciding a person’s employment status, including the mutual obligation to provide and accept work and the control an individual has over their work. The Employment Appeal Tribunal (EAT) held in Waters v The Mote Cricket Club that even though there was some evidence of mutuality of obligation, Mr Waters was neither a worker nor an employee as he could control how and when he worked.
The Mote Cricket Club employed a groundsman from about 2000, who lived in residential accommodation at one of its two cricket grounds. Mr Waters was an active member of the club, which included time as a committee member. In the past, he had also worked occasionally as a volunteer and/or casual worker assisting the groundsman. In 2011, he started a business, Green Hand Gardens, which provided gardening and grounds services.
When the employed groundsman left his job in 2016, the club appointed a replacement on a self-employed contractor basis, but this did not work out and the contractor was removed. The club then approached Mr Waters to take on the work also as a contractor, rather than as an employee.
Although Mr Waters signed a contract to that effect, he was unhappy with a number of its terms. He brought claims for holiday pay and notice pay which meant that he had to prove that he was a worker, as opposed to an independent contractor under section 230(3) of the Employment Rights Act (ERA) 1996.
The tribunal weighed up a number of different factors to decide Mr Waters’ employment status. In favour of his status as a worker, the tribunal noted that the club was his major client; there was evidence of mutuality of obligation between them, meaning that the club had to provide him work and he had to accept it; and he personally had to undertake at least 40 hours of work per week in the summer months.
However, the tribunal concluded that Mr Waters was in business on his own account because:
- He could determine how and when the work was done
- He could engage others to work for him and it was likely he would have to in order to meet the overall requirement of 60 hours per week in the summer months
- The agreement said nothing about holiday pay or sick pay
- He was responsible for submitting his own tax returns
- He had control over the number of hours he worked and no one checked whether he was doing them or not
- He was not subject to the club’s disciplinary procedure.
Mr Waters appealed, arguing that as the tribunal had failed to provide him with adequate reasons, he could not know why he had won or lost. As such the decision was not “Meek” compliant (named after the 1987 decision Meek v Birmingham City Council).
Dismissing the appeal, the EAT held that “Meek” compliance did not mean that a party to the litigation had to know why every factual allegation was decided in the way it was. Mr Waters was therefore wrong to expect the tribunal to undertake a minute factual analysis of the evidence.
Nor did the decision have to refer to every legal argument advanced. Instead, it just had to provide an assessment of the key factors that might be relevant, such as control or, where relevant, mutuality of obligation. It did not mean, therefore, that a decision that did not deal with every fact or argument advanced would automatically fail.
In this case, the EAT held that the employment judge made an overall assessment of the facts and applied the law to the facts he found. It was not, therefore, an error of law for him to fail to refer to every piece of evidence raised by Mr Waters, or every argument he advanced.
Whilst there are a number of factors used to decide whether an individual is an employee or a worker, this case is a useful reminder that the factors are not a checklist. Judges are encouraged to consider the contract “in the round” and assess whether the overall nature of the relationship is that of a business undertaking offering services to a client or customer. Even though Mr Waters was contractually obliged to do a proportion of the work personally, he was not a ‘worker’ because he was operating his own business, with the cricket club as one of his major clients. Likewise, when employment tribunals provide written reasons for a decision, it will not be a flawed judgment if they do not itemise every factor and respond in detail to every argument that was put forward.