The Claimant was a non-executive director of the First Respondent. The Claimant complained that he had been subjected to detriments as a result of making 27 protected disclosures. The claim was resisted by the Respondents, who took the preliminary point that the Claimant was not a “worker” for the purposes of section 230(3)(b) ERA. The ET dismissed the claims saying that it was not intended for the Claimant to be given the status of worker nor did it result as such, and it followed that his claims could not be heard in the ET. The Claimant appealed.

The EAT allowed the appeal. Although the first step was for the ET to determine whether there was a contract between the two parties, it had failed to make a clear finding on that issue. The focus of the ET’s reasoning was on questions of vulnerability, subordination and dependence, which had little relevance to the Claimant’s position as the holder of an office as a non-executive director, and it had failed to address questions with greater relevance to the position of an office-holder or engage with the particular factors relied on by the Claimant as pointing to his having undertaken his duties pursuant to a contract with the first respondent. In the circumstances, it was neither safe nor fair to uphold the ET’s decision on worker status.