McKenna v Kevin McGurk trading as Acute ... [2010] NIIT 01894

THE INDUSTRIAL TRIBUNALS

CASE REF: 1894/10

CLAIMANT: Stephen McKenna

RESPONDENT: Kevin McGurk trading as Acute Engineering Surveys Ltd

DECISION

The unanimous decision of the Tribunal is that the claimant is an employee and a worker and that the respondent is ordered to pay the claimant £70 outstanding wages and £1,120 outstanding holiday pay, a total of £1,190.

Constitution of Tribunal

Chairman: Ms Petra Sheils

Members: Mrs Sylvia Doran

Mr James Norney

Appearances:

The claimant appeared and represented himself

The respondent appeared and was represented by Mr Blaine Nugent of counsel, instructed by P A Duffy, Solicitors.

The Claim and the Response:

1. The claimant lodged a claim on 7 August 2010 claiming unauthorised deduction of wages and outstanding holiday pay.

2. The respondent presented a response on 1 September 2010 stating that the claimant was a subcontractor.

Issues in the case

3. The issues for determination by the Tribunal were as follows:

(i) Was the claimant an employee of the respondent’s?

(ii) Was the claimant a “worker” under the provisions of Article 45 of the Employment Rights (Northern Ireland) Order 1996.

(iii) Was the claimant a “worker” under the Working Time Regulations (Northern Ireland) 1998.

(iv) If the claimant was deemed to be either an employee or a worker under the Employment Rights (Northern Ireland) Order was he entitled to any money which had been unlawfully deducted from his wages?

(v) If so, how much?

(vi) Was the claimant a “worker” under the Working Time Regulations (Northern Ireland) 1998?

(vii) Was the claimant entitled to be paid outstanding holiday pay?

(viii) If so, how much?

Sources of Evidence

4 Witnesses

The Tribunal heard from the claimant and the respondent.

5. Documents

The Tribunal was given various documents by both parties during the course of the hearing.

Submissions

6. The Tribunal received and considered a document entitled “Employed or
self-employed?” prepared by the claimant and received written legal submissions from the respondent prepared by counsel.

Findings of Relevant Facts:

7. The Tribunal found the following facts as agreed or proven on a balance of probabilities:

(i) In 2003 the claimant obtained a BSc (Hons.) in Business Studies with Computing. He subsequently completed a HND Professional Diploma in Civil Engineering.

(ii) The respondent company provided a number of civil engineering services to a range of clients. This work included carrying out road and city landscape surveys. The respondent company has one employee, the respondent’s secretary, and otherwise has over the past 12 years used the services of approximately 40 to 50 site, land and civil engineers and building surveyors.

(iii) In 2005 the claimant was recommended to the respondent by a friend and the claimant worked for the respondent at that time as a site engineer on a freelance basis. This period of work ended in August 2006.

(iv) In 2009 the claimant was again recommended to the respondent by the same person and the claimant began carrying out work for the respondent from November 2009 until May 2010 when this second period of work was ended by the claimant.

(v) During this period of work the claimant worked consistently every week for the respondent often working long hours. The claimant did not do work for anyone else during this period.

(vi) It was accepted that the claimant conducted his work using the respondent’s tools and that he complied with the respondent’s directions as to what work was to be completed. The claimant stated that he had used his own skills, personal knowledge and expertise to get his work done.

(vii) The respondent gave a complete breakdown of the way in which the claimant and all other surveyors worked for him. This included each surveyor being given an A1 template drawing known as a plotter, with the area to be surveyed highlighted on it. The plotter would also give the surveyor an approximate time scale in which the survey was expected to be completed. The surveyor completed the survey and drew his findings on this plotter and thereafter returned it to the respondent. The respondent indicated that he did not personally give out the plotters to the surveyors, but gave these to one of the land surveyors to distribute.

(viii) The claimant confirmed that he did not have his own business nor did he have any of his own clients. For his part the respondent did not at any stage suggest that the relationship between himself and the claimant was such that he considered himself to be either the claimant’s client or his customer. There was also no other evidence before the Tribunal to give an indication to it that either of these positions was the case.

(ix) The claimant claimed that he was paid £10 per hour. However the respondent stated that the claimant was actually paid £15 per hour but that he was paid £10 per hour as £5 was deducted to cover the respondent’s costs of the equipment used by the claimant.

(x) The respondent stated that during the relevant period, between November 2009 and May 2010, his firm had been commissioned to complete a road survey in Belfast which had taken ten weeks to complete. He stated that he had used this method of getting the survey completed, using other surveyors including the claimant and that he had not seen any of the surveyors he had used during this time.

(xi) The claimant completed time sheets for the work he carried out and submitted these to the respondent. The claimant did not submit invoices. The Tribunal saw copies of some of these time sheets and noted that most stated the claimant’s rate of pay as £10 per hour and one stated it as £13.24 per hour. There was no indication on any of the time sheets that the claimant’s rate was actually £15 per hour and that £5 was deducted for tools costs. It was agreed by the parties that the claimant stopped working for the respondent as the result of a dispute between them over the quality of the claimant’s work, as raised by one of the respondent’s clients.

(xii) Both parties agreed that they had had an angry exchange on the telephone during which the claimant acknowledged a mistake in a site drawing and offered an apology. They also agreed that subsequently the claimant advised the respondent that he did not want to work for him any longer.

(xiii) The claimant claimed that he had not been paid wages amounting to £370 and sought to recover these in this claim. The claimant also claimed that he was entitled to £1,120 holiday pay and also sought to recover this.

(xiv) The claimant stated that the £370 wages related to a survey carried out by him at Island Magee. However the respondent stated that this money related to the claimant’s work on a survey at Beechill in Derry. The respondent explained that he had paid the claimant £300 for this work but that, as he had advised the claimant in an e mail, produced at the Tribunal, he withheld £70 to pay for the second surveyor he had been required get to correct the claimant’s mistakes.

(xv) During the hearing the claimant accepted that he had been paid £300 of this money. He realised this from reading his own bank statements, that this amount had been lodged and accepted from the date of the lodgement that this figure related to the Beechill survey. At this point the claimant stated that his claim was for the £70 difference.

The Law

8. Article 45 of the Employment Rights (Northern Ireland) Order 1996 provides workers with the right not to suffer unlawful deductions. It states:-

A 45.- (1) An employer shall not make deductions from wages of a worker employed by him unless-

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

The Tribunal considered the terms of the Employment Rights (Northern Ireland) Order 1996 and in particular the definitions of employee and worker at Article 3 of this Order. This Article states:-

Article 3- (1) In this Order “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Order “contract of employment” means a contract of service or apprenticeship, whether express or implied, whether oral or in writing.

(3) In this Order “worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under)_

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) 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;

and any reference to the individual’s contract shall be construed accordingly.

(4) In this Order “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Order “employment”—

(a) in relation to an employee, means (except for the purposes of Article 206) employment under a contract of employment, and

(b) in relation to a worker, means employment under his contract;

and “employed” shall be construed accordingly.

Additionally the claimant’s claim for outstanding holiday pay fell to be determined under the Working Time Regulations (Northern Ireland) 1998. The Tribunal also considered whether the claimant was a “worker” under those Regulations.

9. The view of the parties.

It was the claimant’s case that he was an employee and also a worker and that he thus qualified for the right not to suffer any unlawful deduction from his wages. It was the respondent’s case that the claimant was neither an employee nor a worker and was that type of subcontractor that should be considered as “truly self employed”.

10. The respondent maintained that the claimant was not an employee and was an independent subcontractor and as such, fell in to the category of genuinely self employed, and was not a “worker”.

11. The respondent also submitted that the claimant fell within the definition of an independent subcontractor, as set out in Harvey, namely

“A contractor is independent insofar as he is responsible for his own decisions in performing the job. He is paid not so much to do the job as to get the job done”.

The Tribunal’s Conclusions

12. The Tribunal noted that in the provisions of both the Employment Rights (Northern Ireland) Order and the Working Time Regulations the definition of “worker” was broader than that of “employee” and that it was wide enough to include persons who did not meet the definition of the term “employee”. The Tribunal also noted from Harvey and relevant case law, that the term “worker” was broad enough to cover independent workers for example freelancers and some contractors, and that it only excluded the “genuinely self employed”.

13 The Tribunal took account of the guidance set down by the Employment Appeals Tribunal in the case of Cotswold Development Construction Ltd v Williams IRLR [2006] 181 as follows, paraphrased,

For there to be any contract at all there must be some mutuality of obligation. Then in order to determine what kind of contract it is a tribunal must examine the nature of the obligations mutually entered into, to identify whether the contract formed by the exchange of those obligations is one of employment or whether it should be categorised differently.

14. The EAT went on to stress that control alone was not determinative of a contract of employment and that a tribunal should ask the following:

(a) was there one contract or a succession of shorter assignments?

(b) if one contract, was it a natural inference from the facts that the claimant agreed to undertake a minimum or at least some reasonable amount of work for the respondent in return for being given that work or pay?

(c) if so, was there such control so as to make it a contract of employment?

(d) or, if insufficient control for that, was the claimant nevertheless obliged to do some minimum (or reasonable) amount of work personally?

15. In applying this statutory and case law to the facts found the Tribunal concluded that the claimant did not come within the definition of the term “independent sub-contractor” and further that the claimant did come within the ambit of the definition of a “worker”.

16. In reaching the conclusion that the claimant was not an independent subcontractor the Tribunal noted that although the claimant used his own skills, knowledge and expertise the respondent controlled both the what and the way in which the claimant completed his work. The Tribunal noted that the claimant was free merely to decide which side of the street he could start the survey but concluded that this scope did not amount to control-free independence.

17. Further the Tribunal noted that the claimant’s working hours for the respondent would have made it impossible for the claimant to have worked anywhere else or do other work during his period of employment with the respondent. This again indicated to the Tribunal the degree of control the respondent had over the work done by the claimant and the lack of the freedom the claimant had to work as a subcontractor elsewhere.

18. The Tribunal noted that the claimant did not own his own tools and that the arrangement with the respondent to “hire” tools further suggested the respondent’s control over the work carried out by the claimant and also suggested a restriction on the claimant to carry out work for someone else.

19. The Tribunal did not consider the fact that the respondent did not see the claimant or any of his other surveyors for long periods of time during their employment sufficient to indicate a lack of control especially in view of the description the respondent gave as to the way in which he required the work to be completed.

20. In applying the guidance of the EAT to the facts of this case the Tribunal concluded that the arrangement between the parties for the relevant period constituted a single contractual arrangement. In those circumstances the Tribunal went on to consider whether a natural inference could be drawn from the facts that suggested that the claimant agreed to undertake a minimum or at least some reasonable amount of work for the respondent in return for being given that work or pay.

21. In this regard the Tribunal noted the fact that the claimant worked a significant number of hours weekly exclusively for the respondent throughout the period and in return received payment for it. The Tribunal also noted that the claimant submitted time sheets, not invoices, recording his hours worked and was paid accordingly.

22. The Tribunal also concluded that on the facts of this case there was sufficient control by the respondent of the claimant getting work and directing how he might complete it so as to render the contract between them a contract of employment.

23. However the Tribunal also considered the alternative position which was whether the claimant was obliged to do some minimum (or reasonable) amount of work personally and concluded on the facts that he was and that he was a “worker” under the relevant legislation for the purposes of these claims.

24. Accordingly the Tribunal orders the respondent to pay the claimant £70 outstanding wages and £1,120 outstanding holiday pay, a total of £1,190.

25. The claimant also undertook personally to complete the work for the respondent. There was no evidence to suggest that the respondent would have been happy to have had the claimant get someone else to do his work in his stead.

26. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 30 November 2010-1 December 2010 and

20 December 2010.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKenna v Kevin McGurk trading as Acute ... [2010] NIIT 01894_10IT (04 March 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/01894_10IT.html Cite as: [2010] NIIT 1894_10IT, [2010] NIIT 01894_10IT

Industrial Tribunals Northern Ireland Decisions