Boss Projects LLP v Bragg

Written terms which describe an individual as an independent subcontractor do not conclusively determine worker status. A tribunal must examine the true agreement and the practical reality of the relationship, taking account of relative bargaining power.

A contractual right of substitution will not prevent worker status where the individual was personally recruited to supply labour and skills, the end-user required personal performance, and substitution had no real practical possibility. An appellate challenge based on an evidential procedural point will fail where the tribunal’s conclusion was independently justified by reliable evidence and a commonsense assessment of the relationship.

The claimant, an experienced scaffolding supervisor, was recruited by Mears Ltd but engaged and paid through a contractual chain involving Potensis Ltd and Boss Projects LLP. His written contract with Boss described him as an independent subcontractor, permitted substitution, and excluded employment rights and holiday pay.

The Employment Tribunal found that the claimant supplied his personal labour and skills, bore no business risk, provided no equipment, worked fixed hours, and could not in reality send a substitute. It held that he was a worker and awarded holiday pay.

Boss appealed, principally contending that the Tribunal had unfairly relied on a letter from Mears Ltd which the claimant had not expressly identified as a document on which he relied.

1. Appeal dismissed. The Employment Tribunal made no error of law or procedure in finding that the claimant was a worker for the purposes of regulation 2(1) of the Working Time Regulations 1988.

2. Applying Autoclenz Ltd v Belcher & Ors [2011] ICR 1157, written contractual terms do not provide a complete or reliable account of a work relationship. Relative bargaining power and all the circumstances may show that the written terms do not reflect the true agreement.

3. The Tribunal was entitled to find that the claimant was not conducting a business undertaking of which Boss was a client or customer. He had been personally selected for his experience and skills, supplied only his labour, used equipment and training supplied by Mears, bore no business risk, and worked fixed hours under management instructions.

4. The express substitution clause did not determine the issue. The Tribunal permissibly concluded that Mears required the claimant personally to perform the specialised role and would not accept a substitute. It was therefore unrealistic to treat Boss as intending to rely on a contractual substitution right which the end-user would not countenance.

5. It was not unfair for the Tribunal to take account of the Mears letter contained in the hearing bundle. Boss had not contended that the Tribunal could not consider documents not expressly identified by a party, and the Tribunal was under no duty to invite further submissions merely because it encountered the letter while preparing its reasons. In any event, the finding of worker status was independently justified by the claimant’s accepted evidence and the Tribunal’s assessment of the relationship.

• Employment Appeal Tribunal: dismissed Boss Projects LLP’s appeal and upheld the Employment Tribunal’s finding that the claimant was a worker.
• Employment Tribunal: found that the claimant was a worker and awarded holiday pay.