Claimant Found Self-Employed in Employment Tribunal Case

OUTCOME: Dismissed

Case Number: 2306370/2025 & 2309689/2025

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

On: 30 March 2026

Before: EJ Rice-Birchall

Representation Claimant: [redacted]

Respondent: [redacted]

JUDGMENT

The claimant was not an employee or a worker of the respondent at the relevant time. The claim is dismissed because the Tribunal does not have jurisdiction to determine it.

REASONS

Background

1. The claimant filed his claim on 26 June 2025. A second claim was subsequently filed. The claims were formally consolidated by the Tribunal.

2. The claimant is attempting to bring claims for unfair dismissal, wrongful dismissal, holiday pay and unlawful deduction from wages under the Employment Rights Act 1996 (ERA) and/or at common law in the employment tribunals. All of those claims require him to have been either an employee or a worker of the respondent. There are also international and territorial jurisdictional issues as the respondent is based in Switzerland. This hearing was listed to consider the jurisdictional arguments.

Evidence

3. The Tribunal had before it a core Preliminary Hearing bundle totalling 247 pages and a supplementary bundle comprising a further 333 pages which included the pleadings and both parties’ witness evidence. The claimant had prepared a chronology of events (not agreed). The claimant prepared a witness statement and gave oral evidence. For the respondent, [NAME]

[RESPONDENT] [NAME], Director [NAME], prepared a witness statement and gave oral evidence. There were skeleton arguments from both parties. As there was no time for oral submissions within the hearing, both parties sent in written submissions for consideration.

4. [NAME] [NAME] had been involved only from April 2022. Therefore his evidence on anything from prior to that date was not based on first-hand knowledge.

The issues

5. The issues for the Tribunal to determine were agreed as follows: a. Does the Tribunal have international jurisdiction to consider this claim? b. Does the Tribunal have territorial jurisdiction to consider this claim? The respondent accepts that, if the claimant is able to establish international jurisdiction, there would be territorial scope to hear his statutory claims, including those under the ERA, on the basis that the claimant carried out his services in Britain and had a sufficient link to British employment law. c. If so, was the claimant an employee of the respondent, i.e. were they employed under a contract of employment for the purposes of s230(1) ERA? d. Was the claimant a worker of the respondent, i.e.: i. did they work under a contract to perform the work personally; and ii. was the respondent something other than a client or customer of the claimant’s [NAME]? e. If not, in protected disclosure complaints only, was the claimant a worker under the expanded definition in section 43K Employment Rights Act 1996? (Note: this did not appear to be relevant and was not addressed by the parties and is therefore not addressed in this judgment).

6. It was agreed that employment status was the key to all of the issues as it would also be relevant to determine whether or not the Tribunal had international jurisdiction to consider the claim.

7. The claimant’s position was that the [NAME] [NAME] arrangement described in the contractual arrangement between the parties did not accord with the substance of the working relationship over the long period for which he was engaged by the respondent.

Findings of fact

8. The following findings are made on a balance of probabilities after hearing and reading all the witness and documentary evidence with which the Tribunal was provided. The Tribunal has not made findings of fact that it was not necessary for it to make to determine the issues that were to be decided at the hearing.

The parties

9. The respondent is a [COMPANY] which aims to advance sustainable agricultural practices through collaboration. It has over 190 members worldwide, and is based in Switzerland.

10. The claimant first began working for the respondent in April 2015. He was appointed on a full time basis, for one year (with a possible extension) leading one of the respondent’s projects, namely the [NAME] ([NAME]). He was recruited as an [NAME] Manager which later changed to [NAME] Director. It was a remote role. The claimant worked primarily from the UK, though there was a period of time when he lived and worked in Copenhagen.

11. The respondent had been recruiting for a full time employee, rather than for a consultant.

12. The end of the claimant’s engagement with the respondent came on 20 February 2025, following having been given 60 days’ notice of termination of his employment by [NAME] [APPELLANT] and Ms [APPELLANT], HRBP on 7 February 2025. The claimant has undertaken no work for the respondent since 20 February 2025. He had worked for the respondent for almost ten years.

Working arrangements

13. The respondent engaged with those working for it in a range of different ways. Some individuals were engaged as employees and paid under PAYE during the period of the claimant’s engagement. The respondent did in fact employ other employees working in the UK who were paid using a [NAME]. There was also a discussion of a “[NAME]” contract which allowed workers to work in Switzerland but live in a neighbouring country. On the respondent’s records, the claimant, in similarity to [NAME], was consistently referred to as an [NAME].

Method of engagement

14. There was evidence that the claimant was given a choice in the matter of his engagement. Indeed, correspondence between the parties before the commencement of the claimant’s engagement indicates that the respondent would have preferred the claimant to be an employee, (“I have a preference for a payroll construction but if it is really unfavourable I am prepared to think of other solutions”) whilst the claimant considered that “the best solution” for him would be “to set up [COMPANY] or operate as a sole trader and just pay tax in the UK.”

15. The claimant confirmed that he sought advice at the time about setting up [COMPANY] from an accountant. He confirmed that it was he who pushed to operate through a [NAME].

16. On 31 January 2023, [APPELLANT], [NAME] wrote to the claimant to say: “I want to arrange a call with you this week to discuss your contract and also to see if you want to consider moving to our [NAME].”

17. In 2024, the claimant was coming under some pressure to move to an employment contract from the respondent. He replied: “ I have run the numbers to move to an equivalent paye salary to and maintain my income and pension contribution level and it’s a £98k GBP, without including any annual bonus….I am open to moving over, but it would be handy to see a draft copy of the contract that I would be moved onto.”

The claimant’s [COMPANY]: [COMPANY]

18. The claimant set up a [COMPANY] ([NAME]) on 20 April 2025 called [COMPANY] ([COMPANY]). The [NAME] was registered with [NAME] and the claimant was listed as the sole director. He also set up a bank account for [COMPANY] and created a formal letterhead to communicate on behalf of [COMPANY] as well as invoice templates which he used to invoice the respondent monthly. [COMPANY] was paid by the respondent only once it had been invoiced. The claimant paid himself a small, tax-efficient salary from [COMPANY] and paid himself the rest as dividends.

19. The claimant was aware of the concepts of employment and self- employment at the time he set up [COMPANY] and took professional advice from an accountant.

20. [COMPANY] filed financial statements each year, prepared by the claimant’s accountant. The claimant prepared personal tax computations which listed him as an employee of [COMPANY]. He signed himself off in communications as Director of [COMPANY]. The claimant filed self- assessments, which were signed stating that they were a true and accurate account of his tax affairs.

21. In 2023 the claimant confirmed to [APPELLANT], on [COMPANY] headed notepaper, that it was his and his accountant’s view that he was legally entitled to fulfil his [NAME] contract and that it fell outside IR35. The claimant signed himself off as Director of [COMPANY].

Negotiation of contract between [COMPANY] and the respondent

22. The contract between [COMPANY] and the respondent was agreed between the parties at the outset, and then regularly renegotiated and renewed. There is a draft contract in the bundle from 2018/9 when the respondent sought to move to a standard contract on which the claimant made comments. The claimant confirmed that he read through the contract and that anything he was unhappy with, he raised. He confirmed that he would not have signed a contract he was unhappy with.

23. The first contract between [COMPANY] and the claimant is entitled “[NAME]”. That contract was for one year and was followed by a number of subsequent contracts.

24. As stated above, the claimant negotiated on the terms before they were agreed.

25. In April 2016, the claimant wrote, in relation to the contract between [COMPANY] and the respondent: [redacted] assumed [NAME] would like to extend it, but …it’s better if we have it agreed in writing…….I’d like to negotiate an increase in rates…”.

26. The claimant did obtain the increase requested even though employees had not had any salary increase “in three to eight years”.

27. In April 2017, the claimant wrote again to [APPELLANT]: “After two years’ service to [NAME],…my contract is again due for renewal. I’m writing to lay the groundwork for a structured discussion about my role, and future within the [RESPONDENT] and rates.” During his negotiations, the claimant made the point that he, unlike employees, didn’t have benefits such as pension. This was used as a negotiating point. There were further negotiations in 2017, which resulted in the respondent agreeing to pay the claimant’s accountancy fees of approximately £110 per month.

28. In 2018, the respondent wrote to the claimant to say that they wanted to use a standard consultant’s contract for 2019 “so everyone has the same one”. The claimant sent back his comments on the draft, which again included him actively negotiating his fee as a consultant.

29. Again, in 2019, the claimant wrote. “my contract renewal is up at the end of December…I would like to continue the discussion we had in April last year regarding the effect of inflation on my contract value”. There was also, in April 2019, a discussion on deliverables.

30. There was no simple automatic renewal of the contract each time it expired. The contract was actively negotiated each year. The claimant accepted that the contract did not automatically renew each year.

31. On each renewal, the claimant negotiated a higher fee and/or additional benefits, on the basis of self-employed contractor marketing rates. Notably, in 2023, the claimant negotiated a higher fee to cover “[NAME] charges” (also described as a “20% [NAME] allowance”) which he said he was paying to run [COMPANY]. The Tribunal finds that the claimant used his [NAME] status to negotiate favourable terms from which he benefitted, in comparison to the respondent’s employees.

Terms of the contract

Parties

32. On some of the contracts, the contracting party is described as the claimant personally rather than [COMPANY]. The Tribunal is satisfied that that was an administrative error on the basis that payment continued to be made to [COMPANY] following invoices from [COMPANY] being submitted. The claimant always continued to be paid via [COMPANY] and provide invoices as he had always done. He continued to take a salary from [COMPANY].

33. All contracts describe the claimant as an [NAME]. It was an express term of the contract that the claimant would “be an

[NAME] and not an agent, partner, joint venture or employee” of the respondent.

Term/duration

34. The contracts had different terms. Some were for 12 months, one was for 21 months, one for 4 months, and one for 8 months. There was no contract in place to cover the final period of the claimant’s engagement (between 31 August 2024 and 20 February 2025). The contract was renegotiated, at least in terms of pay, but also as regards deliverables on each renewal.

Payment

35. The contracts were set up from the outset for [COMPANY] to provide invoices and to be paid.

Tax and national [NAME]

36. The contract stated that [COMPANY] would indemnify the respondent against any tax liabilities and confirmed that the respondent would not be operating PAYE or making or deducting any national [NAME] contributions.

Expenses

37. The respondent agreed to reimburse [COMPANY] the cost of “reasonable travel expenses” incurred in order to perform the [COMPANY] “at [NAME]’s….specific request”.

Benefits: Holiday and sick pay

38. The contract did not allow the claimant holiday pay or sick pay. The contract was framed as 228 working days per annum.

Performance

39. The contract provided for the work done to be evaluated or reviewed and a bonus was payable if targets/deliverables were met. It provided that two successive negative meetings could result in termination of the contract.

Non-exclusivity

40. The contract provided that [COMPANY] had the right to work for [NAME]: “Nothing in this contract precludes the Consultant from undertaking projects and clients outside this contract. [NAME] should be informed of any assignment where there may be conflicts of interest….”.

Equipment

41. The contract stated that necessary assets would be provided by [COMPANY], but that the actual costs of “[RESPONDENT] related transactions, such as

phone calls and data access” would be reimbursed subject to an itemised statement included in the monthly invoice.

Control

42. The [NAME] agreements expressly provided that: “The manner in which the [COMPANY] are rendered by the Consultant will be within the Consultant’s sole control and discretion”.

Personal service

43. The contract between [COMPANY] and the respondent states: “Consultant shall not assign or subcontract in whole or in part any of the [COMPANY] without the prior written consent of [RESPONDENT]”.

Professional indemnity [NAME]

44. The contract required [COMPANY] to “carry adequate professional liability [NAME] to protect from claims arising out of the performance of [COMPANY]”.

Termination of contract

45. The agreement with [COMPANY] was terminable on 60 days’ notice.

The reality of the claimant’s work in relation to the terms of the contract

Payment and tax

46. The contract was between [COMPANY] and the respondent. [COMPANY] received all payments and prepared all invoices. The claimant did not receive any payments personally. No PAYE or national [NAME] was paid by the respondent in relation to the claimant or [COMPANY]. In accordance with the contract, [COMPANY] billed the respondent for 228 working days each year.

Benefits

47. In accordance with the contract, the claimant did not receive holiday pay or sick pay. The claimant confirmed in his email to his accountant in February 2023 that his “contract is agreed as a day rate with no additional benefits such as sick pay or holiday”.

48. In reality, the claimant was able to take holiday whenever he wished. No request was ever declined, and he occasionally forgot to request it.

Performance

49. The claimant’s work was evaluated and performance targets/deliverables were set. Annual reviews generally coincided with contract renegotiation and discussions about pay.

Non-exclusivity

50. The claimant understood that his work was non-exclusive. For example, when commenting on the draft contract with which he was provided in 2018/9, in relation to clause 2.3 which reads: “Nothing in this contract precludes the Consultant from undertaking other projects and assignments subject to informing [RESPONDENT] and confirming there are no conflicts of interest and no potential misuse of member relationships”, the claimant commented: “I have an upcoming assignment, but not for a member or potential member”. The claimant also accepted that he spoke at a conference in Berlin which was unrelated to his work with the respondent.

51. The claimant understood that he had the right to work for other clients and referred to the respondent as his “main client”, at least for IR35 purposes. As stated above, in his comments, the claimant referred to an upcoming assignment and did offer to try to find other clients in a letter to the respondent: [redacted] assignment like [NAME] and [NAME] used to do as extra proof of compliance to IR35 but in my case I don’t think it is necessary”.

Expenses

52. The respondent paid expenses in accordance with the contract. There was evidence of some scrutiny of the claimant’s expenses. The respondent agreed to pay [COMPANY]’s accountancy fees following negotiation by the claimant. The claimant billed the respondent for office space through [COMPANY] for a period of time, when necessary, through expenses.

Equipment

53. The contract stated that necessary assets would be provided by [COMPANY]. In 2023 he wrote to his accountant and confirmed that he provided his own equipment. In fact, in cross examination, the claimant said that the respondent provided a phone, internet and office space, but he had his own laptop. In fact, the claimant had his own contract for a mobile phone which was reimbursed through [COMPANY] through expenses from the respondent.

Control

54. The documents describe the claimant as having “autonomy” in his role and although he reported into someone he was “left to his own devices” and worked “on his own initiative and with little direction”. He did however sit within a formal management hierarchy and was line- managed. He attended team meetings and was integrated into the business.

Personal service

55. The contract between [COMPANY] and the respondent states: “Consultant shall not assign or subcontract in whole or in part any of the [COMPANY] without the prior written consent of [RESPONDENT]”. The claimant never sought to rely on the clause. Accordingly, consent was never sought and never refused.

Professional indemnity [NAME]

56. The contract required [COMPANY] to “carry adequate professional liability [NAME] to protect from claims arising out of the performance of [COMPANY]”. The claimant said he never took out professional indemnity [NAME].

Termination of contract

57. The respondent ended the contract in accordance with the agreement, namely on 60 days’ notice.

The reality of the claimant’s day to day work (other than in relation to the terms of contract)

Hours of work

58. The claimant worked continuously and full time for almost ten years. He generally worked standard office hours Monday to Friday each week. He sometimes worked late at night but was not paid overtime.

Place of work

59. The claimant worked mainly from home. He said he “chose” to work from home in the UK for the majority of his engagement.

Interaction with colleagues/integration

60. Due to nature of work he was doing, it was necessary for him to have interaction with [NAME]. He managed [NAME] in his team. The claimant had a manager he reported into but describes that he worked “mostly at my own initiative”. The manager says he worked “with little direction”. The Tribunal finds that the claimant was integrated into the team and reporting structure, as well as the business as a whole. He used an email address showing the respondent’s details.

Training

61. The claimant negotiated for the respondent to pay for a public speaking course.

Claimant’s role/promotion

62. The claimant was referred to by the title of [NAME] Director or Manager. During the course of his engagement, his title did change from manager to director.

The Law

Section 230 ERA definition of employee/worker

64. S230 ERA defines “employee” and “worker” as follows:

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any [NAME] undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly.

65. There is extensive case law on the subject of employment status, which the Tribunal has taken into consideration where relevant. In particular, the Tribunal took into account the following cases (and where relevant other decisions referred to in them), as being clearly of relevance or referred to by the representatives in their submissions:

a. [NAME] ([COMPANY] v [NAME] 1968 1 All ER 433 on the definition of a contract of service;

b. Montgomery v Underwood [2001] ICR 819 (CA) on control;

c. [NAME] v HMRC [2025] IRLR 80 SC, and [NAME] (Inspector of Taxes) v Lorimer [1994] ICR 218 for guidance on the approach to identifying a contract of employment;

d. [NAME] ([COMPANY] v (1) [NAME] (2) [NAME] 1984 IRLR 240 on the requirement for an irreducible minimum of obligation on each side in a contract of service (“mutuality of obligation”);

e. [COMPANY] and [NAME] v [NAME] and [NAME] [2021] UKSC 5 which restates the importance, when considering whether the elements of the statutory tests in s 230 ERA are met, of the decision in [COMPANY] v Belcher [2011] UKSC 41. This requires an employment tribunal to focus on the actual terms of the arrangement as evidenced by the facts and circumstances and to set aside written terms that do not reflect the true nature of the relationship, although they may continue to have relevance in the ways described in the case of Ter- berg v [COMPANY] and ors 2023 EAT 2;

f. [NAME] v [NAME] 2018 ICR 1511 CA; [NAME] v [COMPANY] v Tanton [1999] ICR 693; and [COMPANY] v Augustine [2021] EWCA Civ 1514 on the right of substitution;

g. [NAME] v The Mote Cricket Club [2022]EAT 28 on whether a contract is a sham;

h. [COMPANY] v Baird [2002] IRLR 96 on workers International Jurisdiction 66. Section 15C-D of the CJJA 1982 provides as follows: “15C Jurisdiction in relation to individual contracts of employment (1)This section applies in relation to proceedings whose subject-matter is a matter relating to an individual contract of employment. (2)The employer may be sued by the employee— (a)where the employer is domiciled in the United Kingdom, in the courts for the part of the United Kingdom in which the employer is domiciled, (b)in the courts for the place in the United Kingdom where or from where the employee habitually carries out the employee's work or last did so (regardless of the domicile of the employer), or (c)if the employee does not or did not habitually carry out the employee's work in any one part of the United Kingdom or any one overseas country, in the courts for the place in the United Kingdom where the business which engaged the employee is or was situated (regardless of the domicile of the employer).” 67. In [NAME] v [COMPANY] C-603/17 (a decision on a reference from the UK Supreme Court), the CJEU observed at [26] that, for the purposes of the Brussels I Regulation (recast) “… an employment relationship implies the existence of a hierarchical relationship between the worker and his employer, and that the issue whether such a relationship exists must, in each particular case, be assessed on the basis of all the factors and circumstances characterising the relationship between the parties”. At [26–27], they also held that there must be a “relationship of subordination” between the [NAME] and employee. Territorial Scope 68. Where there is international jurisdiction, the Tribunal will still need to go on to consider separately whether there is also territorial scope: [COMPANY] v [NAME] [2024]. That is the question of whether the relevant UK legislation, in this case the ERA 1996, applies in relation to employment relationships with an international dimension to them.

69. The test for territorial scope is whether the employment has a sufficiently strong connection with Great Britain and British employment law to justify the application of the relevant statute. That is a multi-factorial assessment: Lawson v Serco [2006] IRLR 289 and [NAME] v [NAME] and [COMPANY] [2012] IRLR 315. However, British employment law will ordinarily apply to employees working in Britain: [NAME].

Conclusions The contractual parties

70. The starting point when considering worker status is to determine whether there was a contract between the worker/employee and the [NAME]. The real issue in this case is that the actual contract was not between the claimant and the [NAME], the respondent, but between [COMPANY], which has a separate legal identity, and the respondent. As such, the claimant had not entered into nor was he working under a contract made with the respondent. At face value therefore, the claimant is not an employee or worker. The ERA requires the individual to enter into the contract of employment or for services.

The contract: a true reflection?

71. In those circumstances, the next question for the Tribunal must be whether or not the contract is a true reflection of the agreement between the parties. If so, the claimant cannot be an employee or worker for ERA purposes, as s230 ERA requires an individual to have entered into or worked under “a contract of employment, or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any [NAME] undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly.”

72. In this case, if the contract into which the parties entered was an accurate reflection of the reality of their relationship, then section 230 is not satisfied as the respondent is, by virtue of the contract, a client or customer of a business undertaking carried on by the claimant.

73. The Tribunal finds that the contract was a true reflection of the agreement between the parties for the following reasons.

No inequality of bargaining power

74. Firstly, there was no inequality of bargaining power. That is amply demonstrated by the claimant renegotiating the contract at regular intervals and making demands, largely around an increase of the fee, with which the respondent mostly acquiesced, on the basis that the claimant was self-employed. He succeeded in obtaining increases in pay, through [COMPANY], in circumstances in which employees had not been awarded a pay increase over a significant period of time. This was on the basis of the costs of running a [NAME]. He made comments on the draft agreement provided. He confirmed in cross examination that he would not have signed something he was unhappy with. The documentary evidence demonstrates that this was very much a contract negotiated by equals. The claimant benefitted from his status as a self-employed contractor in his negotiations with the respondent to a great extent, and relied on the fact that he was self-employed to negotiate more favourable terms on an annual basis. This was not a negotiation that happened simply at the outset of the relationship but one which was ongoing and continued with regularity throughout the claimant’s period of engagement.

The claimant’s choice

75. The claimant actively rejected offers to be an employee when asked by the respondent, clearly indicating a preference for the existing basis upon which he worked for the respondent, through his [NAME]. The claimant knowingly entered into a contract through a [NAME] completely understanding the consequences of doing so and having obtained advice.

76. The Tribunal finds that the claimant understood and preferred the benefits of self-employment, including the substantial financial benefit (in both increased fee negotiation and lower tax payments) as well as the flexibility it afforded him (he did perform at least one other assignment during his engagement).

Full understanding of the terms of the contract

77. The claimant was well aware of the terms of the contract and knew and understood them. For example, he knew and understood that the contract was not exclusive and that he could work for [NAME]. Indeed he makes references to working for [NAME], including setting out in his comments to the agreement that he had an upcoming assignment which was not for a competitor. In this regard the claimant also referred to the respondent as his “main client” and offered to find other clients. This flexibility suited the claimant.

Management not inconsistent with self-employment

78. A degree of management (and therefore subordination and control) is not an indication that a contract must be an employment contract. A self-employed contractor may still require management in order to achieve what is expected of him. Similarly, performance management is not indicative of an employment contract. The respondent is entitled to monitor the work of a self-employed contractor to ensure they are achieving value for money and to monitor whether a bonus may be payable and, indeed, whether the contract should continue. Therefore, whilst the engagement had some of the hallmarks of an employment relationship in terms of the regularity of work; management and supervision and performance management, the Tribunal is satisfied that, on the subject of the degree of control to which the claimant was subject, the degree of control exercised was consistent with self-employment.

Integration not inconsistent with self-employment

79. A relatively high degree of integration would be expected of a skilled contractor in a [NAME] such as the respondent and is not inconsistent with self-employment.

Personal service

80. No request was ever forthcoming from the claimant to substitute another worker, and consent was never withheld by the respondent. From this evidence the Tribunal inevitably finds that the claimant did not as a matter of fact ever use a substitute, indeed both parties agree that he did not. [NAME] [APPELLANT] said that the claimant could have provided a substitute had he wanted to and that it was merely happenstance that he had not done so.

81. The right had never been exercised throughout years of work by the claimant for the respondent. The claimant was adamant that a substitution arrangement

would not have been possible given the nature of the work he did. The Tribunal was reliant on the evidence of the witnesses on this point, as a result of there being no evidence of the right ever having been actually used. The Tribunal accepts that that does not by itself negate the existence of the right.

82. The claimant was clear in his evidence that it would not have been practical for him to provide a substitute. His work did not lend itself, he said, to handing it over to another individual, even a suitably qualified one. He went further than that and asserted that the respondent would not have found it acceptable for him to send a substitute, a state of affairs that the respondent now disputes. He became integrated into the projects on which he was working in such a way that it would simply not have been feasible to hand the job over to someone else on an ad hoc basis.

83. The Tribunal notes that the right of substitution is qualified by a need for consent by the respondent. The Tribunal is satisfied that the respondent would have considered a request made by the claimant, if one were made, to provide a substitute, and that, depending on the circumstances, it is possible that they would have given consent. The Tribunal therefore finds that there was a real right of substitution in the actual contract that subsisted between the parties (as distinct from the written terms). Of course, this is conjecture, but [NAME] [NAME] evidence was clear in this regard.

84. If the Tribunal had accepted the claimant’s evidence about the nature of his work, the level of responsibility it entailed, the complexity of the role he undertook, the necessity for a detailed understanding of the projects on which he was working and for established relationships with the personnel and chain of command involved and had concluded that during the period when the claimant was working for the respondent the right of substitution was no more than theoretical and could not practically have been exercised and that there was no genuine right of substitution that vitiated the requirement of personal service, the Tribunal finds in any event that there is nothing fundamentally incompatible with a person being in business on their own account and being required to do a significant part or all of the work personally.

85. Even if the claimant was obliged to work personally, with no right of substitution, that does not necessarily mean they are an employee (or worker). Per HHJ Tayler in [NAME] at [14]: “It is obvious from the wording, but worth specifically noting, that a person may contract to undertake work personally but not be a worker because he does so under a contract to which the other party is a client or customer of a [NAME].”

Effluxion of time

86. Effluxion of time does not of itself establish any mutual undertaking of legal obligations between the worker and end user. This is so even where the arrangement was initially expected to be temporary only but has in fact continued longer than expected. Something more is required.

[APPELLANT] in business on his own account

87. In conclusion, the contract between [COMPANY] and the respondent was a living document which was re-signed on a regular basis (usually annually) and which

the claimant renegotiated frequently, at least in terms of payment. In that respect the claimant was treated very differently from the respondents’ employees who didn’t get a pay rise over a significant period of time and who did not have the flexibility to perform other assignments. As such, the contract is a true reflection of the agreement between the parties. It was not a falsely conceived document or arrangement which worked substantially to the respondent’s favour. It was not a document which was considered once, at the outset of the relationship, and never revisited or reconsidered. It is notable that, when offered the chance to do so, the claimant did not take the opportunity to be an employee, and that was simply because it suited him to be in business on his own account, and he wished to remain so.

Implication of a contract of employment?

88. In those circumstances, the Tribunal does not find it necessary to imply a contract of employment or a contract for services. The agreement between [COMPANY] and the respondent is not a sham for the reasons set out above. If any such a contract is to be inferred, there must, subsequent to the relationship commencing, be some words or conduct which entitle the Tribunal to conclude that the contract in place (in this case between [COMPANY] and the respondent) no longer dictates or adequately reflects how the work is actually being performed, and that the reality of the relationship is only consistent with the implication of the contract. It would be necessary to show that the claimant was working, not pursuant to the contract between [COMPANY] and the respondent, but because of mutual obligations binding the claimant and the respondent which was incompatible with those arrangements. That threshold has not been met in this case.

89.

Accordingly, the Tribunal finds that the contract was between the claimant’s [COMPANY], [COMPANY], and the respondent. There was no contract between the claimant and the respondent. The existence of the [NAME] alters matters in a fundamental way. In this case, the Tribunal finds as a fact that the contract between [COMPANY] and the respondent (even when erroneously signed by the claimant as an individual) reflected the true agreement between the parties, and that they acted in accordance with it. In reality, the relationship between the claimant, [COMPANY] and the respondent is explicable by genuine express contracts so that an implied contract cannot be justified as necessary.

90. Whilst the claimant worked under a contract, importantly, it was not a contract between him and the respondent, but between a company which he had set up and through which he, personally, was provided to work for the respondent. The claimant fails on that basis.

91. Accordingly, the claimant was genuinely self-employed and was not a worker or an employee because the respondent was a client or customer of the business or undertaking of the company operated by the claimant, exemplified by the invoicing, the separate legal identity of [COMPANY] and the way in which payment was made.

Personal service

92. For reasons set out above, the Tribunal would also have concluded that the the claimant was entitled to provide a substitute to do his work, which is a fact inconsistent with the existence of a contract of employment, or with the requirement for personal service in s230(3)(b) ERA.

International Jurisdiction

93. The Tribunal has no jurisdiction to consider the claimant’s claims against the respondent, as the requirements of section 15C-D of the CJJA 1982 are not satisfied in this case. That is because the claimant was not engaged under an “individual contract of employment”, rather he was a self-employed consultant at all times. The relationship between the claimant and respondent was not a “hierarchical relationship between a worker and employer” or “relationship of subordination” as required in [NAME].

94. On the contrary, the claimant was in business on his own account. He was only subject to evaluative review to assess his progress against the specified deliverables, in the context of assessing whether to renew his contracts on an annual basis.

95. There is therefore no need to go on to consider territorial jurisdiction.

Approved by:

Employment Judge Rice-Birchall

10th May 2026

Judgment sent to parties on 14th May 2026

For the Tribunal Office

Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the [NAME]. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/