N SEJPAL v RODERICKS DENTAL LIMITED

Worker status under section 230(3)(b) of the Employment Rights Act 1996 requires a structured application of the statutory language. The tribunal must determine whether there is an agreement under which the individual undertakes personally to perform work or services, then decide whether the individual carries on a profession or business undertaking of which the other contracting party is a client or customer.

Contractual labels and common-law rules about sham or signature do not control that statutory inquiry. The tribunal must ascertain the true agreement realistically and purposively. Concepts such as mutuality, substitution, control and integration may assist on particular questions, but are not freestanding tests.

The claimant, a dentist engaged by the respondent dental-practice operator under an Associate Contract, alleged pregnancy and maternity discrimination following the closure of the practice where she worked. Her remaining claims depended on worker status.

The Employment Tribunal held that she was neither a worker under section 230(3)(b) of the Employment Rights Act 1996 nor a person employed under a contract personally to do work for section 83(2)(a) of the Equality Act 2010, and dismissed her claims. It relied on an asserted absence of mutuality, the written contractual terms, and an allegedly unfettered locum-substitution right.

The claimant appealed. The central issue was whether the tribunal had applied the statutory worker-status test correctly.

1. Appeal allowed. The Employment Tribunal had not applied the statutory test in a structured way. Its nine-factor framework did not keep the analysis focused on the separate statutory questions.

2. There was plainly a contract between the parties. Mutuality of obligation was relevant to whether a contract existed, but this was not a casual-working or umbrella-contract case. The tribunal erred by treating an absence of an irreducible minimum of obligation as preventing the existing Associate Contract from being a relevant contract.

3. The tribunal also erred by giving primacy to the written contract unless it was a sham in the traditional common-law sense. Under Autoclenz and Uber, the tribunal had to identify the true agreement from all the circumstances and apply the statutory definition purposively. Misrepresentation, lack of contractual capacity and a sham were not preconditions to finding that contractual wording did not state the parties’ true obligations.

4. The locum clause did not create an unfettered substitution right. It operated only after a continuous absence of more than 14 days, required a locum acceptable to the respondent, and had to be assessed in its practical operation. On the contractual terms and the tribunal’s findings, the predominant purpose of the agreement required the claimant’s personal service.

5. The EAT substituted findings that the claimant worked under a contract with the respondent and undertook personally to perform work or services. It could not determine only one answer to the remaining questions: whether she carried on a profession or business undertaking, and whether the respondent was her client or customer. Those questions required a fresh, purposive assessment of the true agreement, including relevant control and integration.

6. The outstanding issues were remitted to a differently constituted Employment Tribunal because the errors were fundamental and a fresh determination would produce no saving in retaining the original tribunal.

• Employment Appeal Tribunal: Appeal allowed. Findings on the existence of a contract and personal service were substituted; the business-undertaking and client-or-customer issues were remitted to a different tribunal: [2022] EAT 91.
• Employment Tribunal: Following a preliminary hearing, held that the claimant was not a worker or Equality Act employee and dismissed her claims.