The Claimant and his wife operated as a two-person partnership. Through that partnership, the Claimant provided services to the respondent as an Area Sales Leader, for which payment was also made through the partnership. Upon the Claimant’s subsequent complaint of unfair dismissal, the Respondent applied for his claim to be struck out as having no reasonable prospect of success. The ET refused the application, on the basis that the fact of these arrangements (which involved a genuine partnership and were not suggested to be a sham) did not preclude the possibility of the Claimant being able to establish employee status. In reaching this conclusion, the ET sought to distinguish the EAT’s decision in Firthglow Ltd v Descombes and anor UKEAT/0916/03. The Respondent appealed.

The EAT allowed the appeal. The ET had erred in seeking to draw a distinction between this case and Descombes, where it had been held that, where the relevant work was being undertaken under an agreement with a partnership, that precluded the possibility of one of the individual partners being able to claim he was an employee. The ET ought to have followed Descombes. Although it was open to the EAT not to follow a previous decision at this level, none of the circumstances that might warrant adopting this course applied. Moreover, the agreed facts, confirmed by the ET’s own findings, meant that the possibility of the existence of a contract of employment between the Claimant and the Respondent was precluded in the circumstances of this case. That being so, the Claimant’s claim of unfair dismissal could have no reasonable prospect of success and the ET ought to have allowed the Respondent’s strike out application.