Gillian Philip v Working Partners Limited & Anor

Worker status under section 230(3)(b) requires application of the statutory language to the facts as a whole. The tribunal must determine whether there is a relevant contract, personal service, a profession or business undertaking carried on by the individual, and a client or customer relationship with the other party.

Control, integration, autonomy, substitution and similar concepts may assist that inquiry, but they are not independent tests or conclusive indicators. An appellate tribunal must read the first-instance decision fairly and as a whole, and must not interfere merely because it would have given factual matters different weight.

The claimant was a writer engaged through her agent by the first respondent, a children’s-book packager, to provide text under a pseudonym. The second respondent published the books. The claimant also undertook promotional activity.

After the first respondent terminated the contractual relationship following a social-media post, the claimant brought discrimination claims. Employment Judge Kemp dismissed those claims at a preliminary hearing on 30 June 2022, holding that she was neither a worker under section 230(3)(b) of the Employment Rights Act 1996 nor an employee for section 83(2)(a) of the Equality Act 2010.

The appeal challenged the findings that the claimant carried on a profession or business undertaking and that the first respondent was her client or customer.

1. Appeal dismissed. The Employment Judge correctly identified the applicable test. It was common ground that the worker-status test in section 230(3)(b) of the Employment Rights Act 1996 was materially identical to the relevant employee-status test in section 83(2)(a) of the Equality Act 2010.
2. The statutory inquiry required findings on whether there was a relevant contract, whether the individual personally performed services, whether she carried on a profession or business undertaking, and whether the other contracting party was a client or customer of that undertaking. The Employment Judge found a contract and personal service, but was entitled to find on the remaining matters that the claimant was not a limb (b) worker.
3. Personal service and the absence of substitution were relevant but not conclusive. Control, integration, autonomy and subordination were also potentially useful evidential tools. They were not freestanding tests and had to be assessed in the context of the statutory language and all the evidence.
4. The Employment Judge was entitled to consider the claimant’s wider writing activities, use of an agent, working arrangements, equipment, remuneration structure and the degree of control exercised. The claimant’s challenges largely sought to reargue the weight given to those findings rather than disclose an error of law.
5. The Employment Appeal Tribunal held that the decision had to be read fairly and as a whole. There was no basis to infer that relevant evidence had been ignored, no misapplication of the statutory test, and no perversity. The finding that the claimant lacked the required worker and employee status was open to the Employment Judge.

• Employment Appeal Tribunal: Dismissed the claimant’s appeal: [2024] EAT 43.
• Employment Tribunal: Employment Judge Kemp dismissed the discrimination claim at a preliminary hearing on 30 June 2022, finding that the claimant did not have the required worker or employee status.