Anglian Windows Ltd (t/a Anglican Home Improvements) v Allister Webb

Where services are supplied under a genuine contract between a putative employer and a partnership, a partner cannot also establish that he individually entered into or worked under a contract of employment for the purposes of section 230 of the Employment Rights Act 1996. The result may differ where the partnership arrangement is a sham, does not reflect the parties’ true agreement, or there is an entirely separate contract with the individual partner.

An Employment Tribunal should ordinarily follow an earlier EAT decision unless a recognised basis for departure exists. On agreed facts that conclusively preclude employee status, an unfair-dismissal claim has no reasonable prospect of success and should be struck out.

The claimant and his wife operated a genuine pre-existing partnership, Webb Consultants. The claimant supplied Area Sales Leader services to the respondent through that partnership, which invoiced for the services and received the payments. Both partners took drawings from its profits.

The claimant brought an unfair-dismissal claim. The London South Employment Tribunal refused the respondent’s application to strike it out, holding that the partnership arrangements did not preclude a contract of employment between the claimant and the respondent. The respondent appealed.

The central issue was whether a genuine partnership through which a partner supplied, and was paid for, services precluded a contract of employment with the recipient of those services.

1. Appeal allowed. The Tribunal erred in declining to follow Firthglow Ltd t/a Protectacoat v Descombes and Lamont, [2004] UKEAT/0916/03. That decision was directly applicable: where the relevant agreement is with a genuine partnership, it is not open to find that an individual partner was separately employed under a contract of employment.

2. Under section 5 of the Partnership Act 1890, the claimant had entered the Area Sales Leader contract on behalf of the partnership and thereby bound both partners. The contract was therefore between the respondent and the partnership members, not a contract under which the claimant as an individual entered into or worked under a contract of employment within section 230 of the Employment Rights Act 1996.

3. The respondent’s lack of knowledge of the partnership, and the fact that the claimant’s wife did not perform the services, did not alter that result. The partnership was genuine, its arrangements reflected the parties’ intentions, and there was no separate individual contract or factual basis to suggest a different reality.

4. The EAT should generally follow its earlier decisions unless the criteria identified in British Gas Trading v Lock, [2016] ICR 503, justify departure. Neither Catamaran Cruisers Ltd v Williams, [1994] IRLR 386, nor later employment-status authority made Descombes per incuriam, inconsistent, manifestly wrong, or exceptionally unsuitable for following.

5. On the agreed facts, the claimant could not establish employee status. His unfair-dismissal claim consequently had no reasonable prospect of success. The ET decision was set aside and the claim was dismissed.

• Employment Appeal Tribunal: Allowed the respondent’s appeal and substituted dismissal of the unfair-dismissal claim as having no reasonable prospect of success: [2023] EAT 138.

• London South Employment Tribunal: Employment Judge Khalil dismissed the respondent’s strike-out application on 23 June 2021; the judgment was sent to the parties on 29 June 2021.