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

The Employment Appeal Tribunal allowed the employer's appeal against the Employment Tribunal's refusal to strike out a claim for unfair dismissal. The central legal question was whether services provided to the respondent through a genuine pre-existing partnership, and paid to that partnership, precluded the individual partner from being an "employee" within section 230(1) Employment Rights Act 1996. The EAT held that where the claimant contracted on behalf of a genuine partnership (binding all partners under sections 5 and 6 Partnership Act 1890), the contract was between the respondent and the partnership and could not simultaneously be an individual contract of employment. The EAT treated itself as bound by Firthglow Ltd v Descombes UKEAT/0916/03 and concluded the ET had erred in attempting to distinguish that authority; on the agreed facts the claim had no reasonable prospect of success and should have been struck out.

Background and procedural posture:

• The claimant brought a claim for unfair dismissal. The respondent applied under rule 37(1)(a) ET Rules to strike out the claim as having no reasonable prospect of success on the basis the claimant provided services through a pre-existing two-person partnership and was not an employee.
• The London South Employment Tribunal (Employment Judge Khalil) refused the strike out on the basis that the existence of a partnership did not preclude the possibility that an individual partner could be an employee. The respondent appealed to the Employment Appeal Tribunal.

Nature of the application / relief sought: An employer's application to strike out as having no reasonable prospect of success (i.e. dismissal of the claim at a preliminary stage).

Issues framed by the court:

1. Whether the existence of a pre-existing genuine partnership, through which activities were provided and payment made, precluded the possibility of a contract of employment between the individual partner and the respondent (section 230(1) ERA).
2. Whether the ET was bound by the EAT decision in Firthglow Ltd v Descombes UKEAT/0916/03 and, if so, whether it had erred in distinguishing it.

Court's reasoning and conclusions:

• The EAT accepted the ET's factual findings that the claimant had entered into the ASL contract acting for and on behalf of Webb Consultants (a genuine partnership), that fees were invoiced and taxed through that partnership, and that there was no suggestion of a sham.
• Applying sections 5 and 6 Partnership Act 1890, the EAT held that the claimant had bound the partnership and that the relevant contract was therefore between the respondent and the partnership (and its members), rather than an individual contract of personal service.
• The EAT concluded it was bound by Descombes, which held that where the relevant work is carried out under an agreement with a partnership firm, the tribunal could not find separate contracts of employment with each individual partner. None of the Lock criteria for departing from an earlier EAT decision applied here.
• On the agreed facts there was no separate individual contract of employment and no realistic prospect of success for the unfair dismissal claim; the ET should therefore have allowed the strike out application.

Wider context: the decision reinforces that where work and payment are genuinely organised through a partnership and the partner has authority to bind the firm, that contractual structure will ordinarily preclude a separate employment relationship with an individual partner unless the facts show some distinct individual contract or a sham.

Appeal allowed. The Employment Tribunal erred in refusing to strike out: where a claimant has entered into the relevant contract acting for and on behalf of a genuine pre-existing partnership (so that the contract is with the partnership under sections 5 and 6 Partnership Act 1890), the possibility of an individual partner's contract of employment with the respondent is precluded; the ET was bound by Firthglow Ltd v Descombes UKEAT/0916/03 and should have found the unfair dismissal claim had no reasonable prospect of success.

Appeal from London South Employment Tribunal (Employment Judge Khalil sitting alone; preliminary judgment sent 29 June 2021) to the Employment Appeal Tribunal, Neutral Citation [2023] EAT 138 (appeal allowed).