Claimant was not found to be an employee or a worker so the Tribunal did not have jurisdiction to hear the claim.

This was an appeal from the Fair Employment Tribunal where the Tribunal had decided that for the purposes of the Race Relations (NI) Order 1997 and the Fair Employment and Treatment (NI) Order 1998 that the claimant did not have the status of employee and the claim lacked jurisdiction.

The background was that the claimant was employed by the respondent from 2016 to 2020 as a branch manager in Downpatrick.  In 2020 there was a restructuring to change the flagship branches to commissioned agencies run by self-employed insurance agents. The claimant was given options but he decided to resign and apply for the role of self-employed agent in the new business in Downpatrick.  This commenced on 1st January 2021.  The new partnership came into being and the administrative staff were transferred to it.

The claimant alleged that he had been discriminated on the grounds of race and religion.  He contended that the respondent had a strategy to undermine him by withholding resources.  As part of a review of the processes undertaken by the claimant’s partnership it received a ‘red’ and this indicated material concerns. The claimant alleged irregularities and that the behaviour in conducting said review was unlawful discrimination and that one of the partners in the partnership had been appointed to spy on him. The issue for the Tribunal and the Court of Appeal here was whether the claimant had standing to bring a claim.

At first instance, the Tribunal listed a series of 9 matters to be considered in determining the status of the claimant.  Each was taken in turn and it was noted that in the financial industry that there was a high degree of regulation and a degree oversight and control by the respondent was required.  There was no evidence that the claimant had intended to remain as employee or self-employed workers with the respondent following the structural change.  They resigned their contracts and held themselves out as self-employed contractors including to HMRC.  The claimant worked on the basis of profit and loss and received commission from the respondent. The Tribunal did note that there was a mutuality of obligations between the claimant and respondent but this was not determinative of the claimant being a self-employed worker but rather consistent with agreements in various industries in a franchise model.

The Court of Appeal had to determine whether the claimant had established that he was a limb (b) worker as set out in Uber. The issue in this regard was whether there was a requirement for personal service – the Tribunal identified that the question of a degree of personal service was not determinative.  Indeed, the Tribunal noted that the claimant had employed staff to perform many of the functions and they could substitute employees to undertake the roles that the claimant had taken on.  Therefore, it did not point towards the status of worker and this was agreed by the Court of Appeal. As a result, the Court of Appeal found no material aberration in the analysis of the Tribunal and the claimant’s appeal was dismissed.

It is good to see a case in the Northern Ireland Court of Appeal entering into the discussion relating to employment status.  This is especially so considering the length and breadth of the jurisprudence arising from the courts in England and Wales.  In this decision, it may have been found that there was a mutuality of obligations but that was not found to be determinative and had to be taken into account in terms of the overall context of the arrangement which clearly demonstrated an intention for the claimant to be self-employed and could substitute his own service through the employment of others.

You can read the case in full here.