Howard Waters v The Mote Cricket Club

An individual who undertakes personally to perform work is not necessarily a worker. Under Employment Rights Act 1996, the individual may still be carrying on a business undertaking and the other contracting party may be that undertaking’s client or customer.

Employment status requires an overall, fact-sensitive assessment. Detailed contractual obligations, substantial personal performance and a major customer relationship may be relevant, but do not preclude a finding that the individual is in business on their own account.

A tribunal’s reasons are sufficient if they enable the parties to understand why they won or lost. It need not address every item of evidence or every argument. An appeal court should not conduct a minute factual re-evaluation where the tribunal applied the correct legal principles.

The claimant operated a gardening and grounds-maintenance business. He contracted, through that business, to maintain the respondent cricket club’s grounds. The agreement included detailed work requirements and required him personally to undertake at least 40 hours’ work a week during the summer season.

Following a preliminary hearing, the Employment Tribunal held that he was neither an employee nor a worker. It found that the club was a client or customer of his business. It therefore rejected his holiday-pay and notice-pay claims and refused permission to add an unfair-dismissal claim.

The claimant appealed. He alleged that the Tribunal had failed to consider material evidence concerning control, hours and personal service, and that its reasons were inadequate. The central issue was whether the Tribunal had erred in its assessment of worker status or in explaining its decision.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the claimant was neither an employee nor a worker.

2. Section 230(3) of the Employment Rights Act 1996 makes personal performance necessary for worker status under limb (b), but it is not sufficient. An individual may undertake personally to perform work while carrying on a profession or business undertaking of which the other party is a client or customer. The Tribunal was entitled to find that this was such a relationship.

3. The Tribunal had correctly directed itself to conduct a multi-factorial assessment. It considered the detailed specification of the work, the 40-hour personal-service requirement, the absence of ordinary day-to-day supervision, the claimant’s use of others to assist, his existing grounds-maintenance business, and the financial and contractual arrangements. Personal performance for a substantial part of the work was a factor favouring worker status, but it was not incompatible with the claimant being in business on his own account.

4. The claimant’s complaints about additional unpaid work, match-related timing, reporting requirements and monitoring of hours sought an impermissible minute re-analysis of the facts. Those matters did not show that the Tribunal had ignored material evidence or applied the wrong legal test. The status assessment was fact-sensitive and was for the Tribunal.

5. The reasons were Meek compliant. A judgment must enable the parties to understand why they won or lost, but need not decide every factual allegation or address every argument. The concise reasons identified the material factors and adequately explained the outcome.

• Employment Appeal Tribunal: Appeal dismissed in [2022] EAT 28.
• Employment Tribunal: At a preliminary hearing on 11 September 2020, Employment Judge Hargrove held that the claimant was neither an employee nor a worker, rejected the holiday-pay and notice-pay claims, and refused permission to amend to add unfair dismissal.