Ahsan v Westmead Business Group Ltd

Employment status must be assessed from the contract and the parties’ conduct throughout the relationship. A tribunal should not treat post-termination correspondence as decisive where the contemporaneous documents and conduct establish employment. The later correspondence may be relevant to sham or contractual analysis, but it cannot retrospectively undo an employment relationship already formed and performed as such. An appellate tribunal may determine the issue itself from documentary material where the evidence is sufficiently clear, avoiding remittal and further procedural delay.

The claimant appealed against an Employment Tribunal decision dismissing his employment claims on the ground that he was self-employed. He had worked for the respondent as Head of Corporate Strategy and Performance. The tribunal relied principally on post-termination emails in which the claimant accepted a self-employed status and did not adequately analyse the contemporaneous contractual documents or the parties’ conduct during the engagement.

The Employment Appeal Tribunal considered whether the documentary material established an employment relationship and whether the issue should be remitted for reconsideration.

1. Appeal allowed. The Employment Tribunal had focused wrongly on emails exchanged after the relationship had ended. Those emails did not negate the employment relationship.
2. The employment status issue had to be assessed by examining the contractual documents and the relationship as it was formed and conducted. The letter appointing the claimant, the staff handbook, the employer’s confirmation that he was employed full time at a stated salary, references to contractual notice and commission, and the deductions made for tax and national insurance were consistent with a contract of employment.
3. The fact that the claimant attended the offices only about two days a week and could regulate his hours and work schedule did not determine the issue. Those matters were insufficient to displace the other documentary evidence.
4. The later emails, including the claimant’s acceptance of responsibility for tax and national insurance, could not retrospectively alter the status created by the original contract and the parties’ conduct. The Employment Tribunal therefore erred in law by treating them as decisive.
5. The comparison with the HR subcontractor’s engagement was an irrelevant consideration. That subcontract was not before the appellate tribunal and there was no proper basis for treating it as comparable.
6. Applying the approach in Sinclair Roche & Temperley v Heard, the Employment Appeal Tribunal had sufficient material to decide the issue itself rather than remit it. The claimant was an employee. The case was remitted to the Employment Tribunal to determine his claims on that footing, and decisions based on the contrary status were set aside.

• Employment Appeal Tribunal: Allowed the appeal, held that the claimant was an employee, set aside decisions based on his being self-employed, and remitted the claims for determination on that footing.
• Employment Tribunal: Dismissed the claims after finding that the claimant was not an employee.