Richards v Waterfield Homes Ltd & Anor [2022] EAT 148

Appeal against a finding that the Claimant was not an employee. Appeal allowed.

The Claimant began working for the Respondent in October 2010. At the time of his introduction to the Respondent he was in need of work. He was at the time a registered CIS contractor. CIS is a scheme in which a sub-contractor can have 20% of his gross earnings deducted by the employer and paid to HMRC on account of income tax and National Insurance. In 2018, the Respondent instructed Peninsula Business Services Limited to “regularise” its employment relationships. As a result, the Claimant was switched to an employment contract. The Claimant claimed that he had been an employee from 2010, not 2018, but the ET disagreed, saying that the parties had agreed that the legal basis of the engagement of the Claimant was through the CIS Scheme as a self-employed contractor. The Claimant entered that agreement with sufficient bargaining power to make it a genuine arrangement. The Claimant appealed.

The EAT allowed the appeal. The ET had erred in finding that, in a working relationship which had numerous indicators of employment status and only one in favour of self-employment, that the latter should be determinative of the issue. Self-employment (implicit in the use of the CIS scheme to pay the Claimant) was only one of the factors to be considered. Looking at the findings as a whole, and consistent with case law, the only proper conclusion open to the ET was that the Claimant was indeed an employee.

Published: 29/12/2022 16:02

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