Tracy Alger v Clayton Bowmore Group Holdings PLC

Employment status is determined from the whole relationship and surrounding facts. Payment of a worker’s own tax and national insurance is not decisive. Nor is there a single universal test for distinguishing an employee from an independent contractor.

The relevant considerations include personal service, remuneration, control, mutuality of obligation and whether the contractual arrangements are consistent with employment. The court must assess the evidence realistically. Where a worker supplies labour only, uses the contractor’s tools, works the hours set by the contractor and is moved between tasks, those facts may support direct employment even where the worker describes himself as self-employed or as a subcontractor.

The claimant, the widow and administratrix of Eric Alger’s estate, brought a claim concerning his alleged exposure to asbestos while working on the Woodford Bridge refurbishment project in 1988. The defendant was the main contractor.

The preliminary issue was whether Mr Alger had been directly employed by the defendant, notwithstanding that he paid his own tax and national insurance, or had instead been engaged by a labour-only subcontractor supplying labour to the defendant. The court considered evidence about the work performed, recruitment practices, tools, supervision and the defendant’s historic advertisements.

1. Preliminary issue allowed. Judgment was entered for the claimant. On the balance of probabilities, Mr Alger was directly recruited and employed by the defendant on the Woodford Bridge project.
2. Employment status depends on the substance of the relationship. There is no single universal test. A worker may be an employee despite paying his own tax and national insurance. The issue is fact-sensitive: Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374; Lane v Shire Roofing Company (Oxford) Limited [1995] IRLR 493.
3. The familiar considerations include personal service for remuneration, control in a sufficient degree, an irreducible minimum of obligation on each side, and the consistency of the other contractual provisions with a contract of service. A genuine right of substitution may negate personal service: Ready Mixed Concrete (SE) Limited v Minister of Pension and National Insurance [1968] 2 QB 497; Nethermere (St Neots) v Gardiner [1984] ICR 612; Autocleanz Limited v Belcher [2011] 4 All ER 745.
4. The court also took account of the modern warning against over-focusing on the first two elements of the Ready Mixed Concrete analysis while treating the wider circumstances as secondary: HMRC v Professional Game Match Officials Ltd [2024] UKSC 29, paras 23–68.
5. Mr Alger’s detailed account that he supplied labour only, used tools provided by the contractor, worked exclusively for it, worked across different parts of the site and performed labouring work was accepted. The defendant’s evidence was materially inconsistent and did not satisfactorily explain its direct recruitment advertisements or the increase in employee numbers.
6. The defendant was ordered to pay the claimant’s costs of the preliminary issue, subject to detailed assessment if not agreed, and to pay £25,000 on account. A telephone case management conference was directed.