Claimant was not an employee or worker of the second respondent despite being given the title of its Deputy CEO for a portion of time.

The claimant brought multiple claims against the two respondents including unfair dismissal, detriment on grounds of protected disclosure and unlawful deduction from wages.  The appeal stems from a preliminary hearing relating to the employment status of the claimant.  This was specifically in relation to the second respondent.

The first respondent is part of the second respondent.  As part of a pay review in 2020, it was agreed that the claimant would in addition to being CEO of the first respondent would become a Deputy CEO of the second respondent.  When this was approved by the Board this involved being an executive leader of the teaching and learning strategy across the second respondent.  However, despite the new title and promotion the claimant was never provided with any documentation.  The claimant asserted that he had a dual role and the second respondent had a sufficient degree of control over his work and he was therefore an employee and/or worker of the second respondent.  The second respondent refuted this and stated in any event the claims were against the first respondent.

At first instance, the Tribunal held that the claimant was not an employee or worker of the second respondent.  It found that none of the parties, including the claimant, thought there was a separate contract at the time. It had actually been discussed at the time and discounted. There were also no hallmarks of an agreement between the claimant and the second respondent – for instance the second respondent did not remunerate the claimant, instead it came from the first respondent in its entirety. The work undertaken as part of the wider group was seen as to the benefit of the first respondent and it was only once the first respondent felt that they were not beneficial to them that they terminated them. This was done by the first respondent and made it clear that the employment was with the first respondent and not the second.

The claimant appealed to the EAT.  The claimant stated that the Tribunal erred in failing to consider if he was a Section 43K(1)(a) worker of the second respondent.  However, the EAT held that this was never part of the pleaded case and it was not on the Tribunal, in its fundamental duty of fairness, to raise and consider it.   It had to fall into a category where it should have been considered as a ‘matter of course’. As a result, the appeal was dismissed.

This case is an interesting one where individuals are working in larger structures with multiple different companies.  The claimant did straddle the two respondents but it was done through the first respondent and the engagement with the second was primarily seen for the benefit of the first respondent.  The contractual position was clear when the first respondent was able to stop that engagement with the second when they did not feel it was beneficial to their interests.  This led to the decision that the claimant was only an employee of the first respondent and not the second.

You can read the case in full here.