Anthony Catt v English Table Tennis Association Limited & Ors

For limb (b) worker status under section 230(3)(b) of the Employment Rights Act 1996, the necessary starting point is whether the parties made a contract under which the individual undertook personally to perform work or services for the other party. Subordination, vulnerability, dependence, control and integration may assist in applying the statutory language. They are not freestanding or universal tests.

Where the individual is an office-holder, the tribunal must address the particular legal relationship. Relevant matters may include the manner of engagement, the source and character of the rules governing service, the parties’ agreement and the overall context. A tribunal errs if it leaves the contractual question unresolved and instead treats the absence of subordination or dependence as decisive.

The claimant was an elected non-executive director of the first respondent. He received an annual honorarium and performed board and related duties. He alleged detriments for protected disclosures under section 47B of the Employment Rights Act 1996.

The Employment Tribunal held that he was not a limb (b) worker under section 230(3)(b) and dismissed the claims. It concentrated on his independence from the board, and on the absence of vulnerability, subordination and dependence.

On appeal, the central question was whether there was a contract under which the claimant undertook to perform work or services personally for the first respondent. The claimant also contended, alternatively, that exclusion from whistleblowing protection engaged articles 10 and 14 of the European Convention on Human Rights.

1. Appeal allowed. The Employment Tribunal’s conclusion on worker status was set aside and the matter was remitted to a differently constituted tribunal for a fresh hearing.

2. It was common ground that the claimant performed his non-executive-director duties personally and that the first respondent was not his client or customer. The decisive limb (b) issue was therefore whether the parties had made a contract under which he undertook to perform work or services for the first respondent.

3. The tribunal failed to make a clear and determinative finding on whether there was such a contract. Its statement that the claimant owed no contractual obligation was immediately qualified by the observation that this did not preclude worker status. Its later reference to a “true agreement” did not resolve the ambiguity.

4. The tribunal further erred by focusing on vulnerability, subordination and dependence. Those concepts may be useful in some worker-status cases, but they are not universal statutory requirements and were of limited assistance for this office-holder. The correct enquiry required attention to the particular relationship, including the manner of engagement, the source and character of the governing rules, the parties’ agreement and the overall context.

5. The evidence concerning the time commitment, remuneration, expected attendance and potential removal from the board might point towards a contractual relationship. It did not compel that conclusion. It would therefore be neither safe nor fair for the EAT to determine worker status itself.

6. The tribunal also failed to explain its rejection of the alternative Convention argument based on Gilham. Although it might have thought the point unnecessary because non-executive directors could in principle be limb (b) workers, it gave no conclusion. If maintained, that argument may be considered on remittal.

• Employment Appeal Tribunal: allowed the appeal, set aside the Employment Tribunal’s worker-status decision and remitted the matter for a fresh hearing.
• Employment Tribunal (Watford): held on 7 July 2021 that the claimant was not a worker within section 230(3)(b) of the Employment Rights Act 1996 and dismissed the claims.