Rogers v Craigclowan School

Employment status requires a multifactorial assessment of the reality of the working relationship. Relevant indicators include mutual obligations, the employer’s control over the work, and whether the individual has a genuine right to provide a substitute.

An appellate tribunal will not reweigh those indicators where the Employment Tribunal has directed itself correctly, made findings open on the evidence, and given adequate reasons. A finding that the relationship is one of self-employment is not perverse merely because some features are also consistent with employment.

The claimant had taught bagpipes at the respondent school since 1996. He was paid by reference to lessons taught and sought declarations that he was an employee and as to his contractual terms. He also claimed unlawful deductions from wages under section 13 of the Employment Rights Act 1996 and holiday pay.

The Employment Tribunal held that he was a self-employed contractor, rather than an employee or worker. It relied principally on the absence of mutuality of obligation and sufficient control, and on his right to arrange a substitute.

The claimant appealed, alleging that the Tribunal had failed properly to conduct the multifactorial assessment and had reached a perverse conclusion.

1. Appeal dismissed. The Employment Tribunal made no error of law in deciding that the claimant was a self-employed contractor rather than an employee.
2. The issue was the interpretation of substantially undisputed evidence by applying the employment-status approach in Ready Mixed Concrete and Autoclenz. It was for the Employment Tribunal to decide whether the relevant test was met and to weigh the individual indicators.
3. The Tribunal had given a careful and reasoned explanation for finding a lack of mutuality of obligation, a lack of sufficient control, and a right of substitution. Those were indicators of self-employment. Its conclusion was open on the facts found.
4. The Tribunal was entitled to take account of the fact that the claimant had been in a dispute about his status when assessing his evidence. It had not found him dishonest. Its observation that he tended to present evidence consistently with his belief that he was an employee did not show perversity or unfair methodology.
5. No basis existed for the Appeal Tribunal to substitute its own assessment. The claimant’s claims therefore remained dismissed.

• Employment Appeal Tribunal: appeal dismissed: [2013] UKEAT 0027_13_1907.
• Employment Tribunal: held that the claimant was a self-employed contractor and rejected his employment-status, wages and holiday-pay claims.