Redrow Homes (Yorkshire) Ltd v Wright

The Court of Appeal upheld decisions of Employment Tribunals and the Employment Appeal Tribunal that bricklayers engaged under Redrow's standard form orders were "workers" within the meaning of regulation 2(1) of the Working Time Regulations 1998. The central legal question was whether the individual contractors had undertaken to perform the work "personally" under their contracts. The court analysed the contractual documents (the Official Order and the "Conditions and Acceptance of Order") and the factual matrix surrounding performance, concluding that clause 1 rendered the standard conditions a menu of possible terms and that clause 6 (which contemplated provision of other operatives) was not intended to apply to these particular engagements. On construction of the contracts in light of surrounding circumstances (including payment arrangements and how the contracts were performed), the court found an intention that the men provide their services personally and so be within the definition of "worker" under regulation 2(1).

Background and parties. These are two consolidated appeals by Redrow Homes (Yorkshire) Ltd and Redrow Homes (North West) Ltd against decisions that sets of bricklayers were "workers" within the Working Time Regulations 1998. The Employment Tribunals at Leeds and Flint had found the respective applicants (Mr Wright; Mr Roberts and others) to be workers and awarded compensation under regulation 14. The Employment Appeal Tribunal dismissed Redrow's appeals and this Court of Appeal heard the further appeals.

Nature of the claim / relief sought. The applicants sought declarations and compensation based on the Working Time Regulations 1998, principally the definition of "worker" in regulation 2(1) and entitlement to leave-related compensation under regulation 14.

Facts and contractual documents. The men were engaged to perform brickwork on Redrow sites under an "Official Order" together with "Conditions and Acceptance of Order". The printed conditions were broad; of particular relevance were clause 1 (applicability of the printed conditions) and clause 6 (which envisaged the contractor supplying sufficient labour and maintaining a foreman). The tribunals found that the men performed the work personally and were paid weekly into individual accounts; Redrow supplied materials, some plant and a labourer; the men supplied hand tools.

Issues framed by the court. (i) Whether, as a matter of construction of the contract and the factual matrix, the individual bricklayers had undertaken to perform the work personally within regulation 2(1)(b); (ii) whether clause 6 formed part of the applicable contract and therefore allowed subcontracting so as to negate the personal obligation; and (iii) the extent to which tribunals could rely on how the contract was actually performed in construing the contractual obligation to perform personally.

Court's reasoning. The court stressed that the determinative question is the rights and obligations under the contract and that tribunals may consider surrounding circumstances to ascertain which of the printed conditions were "applicable" under clause 1. Clause 1 made the printed conditions a selectable "menu" and the tribunal must determine which clauses the parties intended to apply in the factual matrix. The Court of Appeal accepted that clause 6, if applicable, would be inconsistent with a personal obligation, but concluded on the evidence that clause 6 was not intended to apply to these particular engagements. The payment arrangements (weekly payments into each individual's account), the scope of the works, and industry practice supported the tribunals' findings that the parties intended personal performance. The court therefore upheld the findings that the applicants had undertaken to perform personally and were "workers" under regulation 2(1).

Wider context. The court noted that tribunals should focus on contractual construction and the factual matrix rather than broad policy considerations about dependence or self-employment; although factual performance may shed light on contractual intention, actual performance alone is not decisive.

Appeal dismissed. The Court of Appeal held that, on construction of the contracts in the factual matrix, the parties intended that the individual bricklayers undertake to perform the work personally and therefore they were "workers" within regulation 2(1) of the Working Time Regulations 1998. Clause 6 of Redrow's printed conditions was not intended to apply to these particular engagements and therefore did not displace the personal service obligation.

Appeals to the Court of Appeal from Employment Appeal Tribunal decisions (sent to the parties 30 May 2003) which themselves were appeals from Employment Tribunal decisions given at Leeds (26 February 2002) and Flint (24 September 2002). The Court of Appeal delivered judgment [2004] EWCA Civ 469 on 23 April 2004.