Industrial Tribunals Northern Ireland Decisions

 


McKeown v Chap Cable Ltd & Anor (Status of Applicant) [2002] NIIT 3473_01 (18 November 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 3473/01

APPLICANT: Gerard McKeown

RESPONDENTS: 1. Chap Cable Limited

2. Wrekin Cable Services Limited

DECISION

The unanimous decision of the Tribunal that the applicant is a Sub-Contractor of the respondent and not an employee. As such the applicant is not covered by the Employment Rights (Northern Ireland) Order 1996.

Appearances:

The applicant appeared in person and represented himself.

The respondents were represented by Mr John Stocker

The tribunal found the following facts:-

1. The applicant worked for the respondent from in and around 11 August 1997 to 4 October 2001.
2. The applicant identified that his was the signature appearing on a Sub-Contractor Order from Filcom Limited dated 1 September 1999 appended hereto marked A1. Filcom Limited was a telecommunications installation company that undertook cabling and jointing works for British Telecom in Northern Ireland. In 2001 a consortium company, Chap Cable Limited, was set up to bid for a contract and won the contract from BT in July 2001. Filcom was sold to Wrekin Construction and renamed Wrekin Cable Services. Neither Filcom nor Wrekin traded in Northern Ireland since July 2001.
3. The applicant claimed that he was entitled to compensation for unfair dismissal and to a claim for monies due and unpaid.
4. The tribunal finds that the applicant was a Sub-Contractor. The tribunal's reasons for so finding are as follows:-

1. the terms of the attached Sub-Contractor Order, marked A1, are very clear;

2. the applicant could chose whether or not to undertake any work, as he made it plain in his evidence that if, for example, his child or his wife was sick, then he could indicate that he was not available and his Contractor Schedule of Works would be reassigned to another Contractor;

3. it was undisputed that the applicant paid his own National Insurance Contribution, and that he employed a Tax Consultant to file his Self-employed Tax Returns;

4. just as the applicant was not obliged to take work, the respondent was not obliged to guarantee a level of work or indeed any work at all. The applicant provided a schedule of his earnings between 6 April 2001 and 12 October 2001, and the tribunal noted that the level of his weekly earnings fluctuated from 0 at the least to £838.04 at the greatest;

5. there was also no entitlement to holiday pay or to sick pay. The applicant confirmed in evidence that if he wished to go on holiday he had to save up in advance and make sure that he had enough money to cover both his holiday and his return; and

6. it was also clear from the evidence that the respondent did not exercise the degree of control over the applicant that would be consistent with a Contract of Employment. The applicant was not told by a supervisor how to install his cabling or do any other work, rather, the role of the supervisor was to check on quality only. It was plain that the supervisors had no disciplinary function whatsoever, and while they liaised with Sub-Contractors this was purely in relation to quality and not other issues.

5. For all of the foregoing reasons, the tribunal unanimously finds that the applicant was not an employee and as such is not entitled to claim the protection of the Employment Rights (Northern Ireland) Order 1996 either by way of a claim for unfair dismissal or a claim for alleged deductions from wages. In essence, the tribunal is unable to find that the applicant was 'part and parcel' of the respondent, Chap Cable Limited.

Chairman:

Date and place of hearing: 18 November 2002, Belfast

Date decision recorded in register and issued to parties: