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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Milliken v DX Network Services [2011] NIIT 01143_11IT (17 October 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01143_11IT.html
Cite as: [2011] NIIT 1143_11IT, [2011] NIIT 01143_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1143/11
CLAIMANT: Christopher Milliken
RESPONDENT: DX Network Services
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant was not a worker as defined by Article 2 of the Working Time Regulations (Northern Ireland) 1998.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Kinney
Appearances:
The claimant was represented by Mr P Moore.
The respondent was represented by Mr Anntis, Solicitor, of Boyes Turner, Solicitors.
1. The claimant made claims for unfair dismissal and unpaid holiday pay. Mr Moore, on behalf of the claimant, withdrew the claim for unfair dismissal. The parties confirmed that the essential issue between them was whether or not the claimant was a worker as defined by Regulation 2(1) of the Working Time Regulations (Northern Ireland) 1998. Mr Moore and Mr Anntis agreed that the only issue between the parties was under Rule 2(1)(b). The definition of ‘worker’ is set out in the Regulations as follows:-
“ … worker … means an individual who has entered into or works under …
(a) a contract of employment; or
(b) any other contract, whether or 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 profession or business undertaking carried by the individual.”
2. Both parties made submissions asking that the issue of whether or not the worker should be dealt with as a preliminary point. I considered the guidance from the Court of Appeal in Ryder v Northern Ireland Policing Board [2007] NICA 43 and determined that whilst this was a borderline application, I took into account the overriding objective and the fact that witnesses were present and that the respondent’s solicitor had travelled from England for the hearing. In those circumstances, I determined that, on balance, I should proceed with the pre-hearing review.
Findings of fact
3. The claimant entered into a contract with the respondent, the most recent version of which was signed on 20 January 2010. The contract describes the contractual relationship in various clauses. These are Clauses 2.1, 4.4 and 6.4, 6.6. They describe the claimant as a contractor who will take care of his own tax affairs etc and also confirms the right of the contractor to provide the services, either personally or otherwise.
4. In evidence the claimant said that he was in agreement that the contract was the reality of the arrangements he made with the respondent. He agreed that he was able to send someone else to do work in his place. He agreed that he did this when he wanted time off work and he also agreed that he was paid for each of these periods and he then paid whoever he chose to replace him at a rate which was not controlled by the respondent.
5. The claimant had responsibility for a particular courier run. He was subject to the constraints of customer demand in terms of being at particular premises at particular times. There were no set hours of work, subject again to the need to be at particular customers at particular times. Each of the couriers, including the claimant, was able to do other work at the same time and other couriers did conduct other work during their working day. Some delivered for other companies, some did newspaper deliveries in the early morning and others did seasonal work, particularly around Christmas. One of the contractors was a limited company and employees of the company carried out the work.
6. Each of the couriers were subject to a vetting procedure. This was to comply with the requirements of various customers. If a courier did not wish to carry out his work on a day he had to retain a relief driver. The relief driver was not provided by the respondent but was arranged for and paid by the individual courier himself. The only requirement from the respondent was that it was the contractor’s obligation to provide suitably competent drivers and to ensure they complied with the vetting procedure. Otherwise the choice of relief driver and the payment and remuneration of that driver was a matter entirely for the courier in question.
7. The claimant in his evidence did not say that he could not do extra work for himself but rather he did not feel he had the time to do extra work.
8. The claimant was inconsistent in some aspects of his evidence.
9. The claimant provided his own van and paid for his own expenses, including fuel, tax and insurance. There was a dress code for the couriers but no uniform was required. The claimant was equivocal in his evidence, he said on a number of occasions that he felt it was like he was employed. He was also, at times, contradictory in his evidence, for example, he stated that there was a fixed time for starting work each morning; but in cross-examination accepted there were different starting times. The claimant raised no questions or issues about his employment status at any time before the termination of his contract. He raised no holiday queries over the 10 or 11 years of employment. He did not raise any issues when the employer unilaterally made changes to the arrangement. Mr Howe, his general manager, confirmed that none of the couriers raised any issues about their employment status. Mr Howe in his evidence also was not challenged when he said that the company would not know on any given day who was going to turn up and carry out the work. The worksheets showing the drivers would be presented to administrative staff who did not come to work until after the drivers had started their day’s work.
10. The tribunal also had evidence that on one particular day the claimant was due to carry out a run and he employed a relief driver. This was allow him to be the relief driver for his son, Brian Milliken, who was not working that day. The claimant said this was to make sure that his son received payment for that day. The reason that he acted as relief driver for his son was because he knew his son’s route.
Conclusions of the tribunal
11. In considering the question of whether or not the claimant was a worker within the definition of the Working Time Regulations, a central question is whether or not the claimant has delivered services personally.
In the case of Autoclenz Ltd v Belcher & Others judgment from the Supreme Court was given on 27 July 2011. Lord Clarke gave the decision of the court. He considered the legal principles. At Paragraph 19 he said:-
“Three further propositions are not I think contentious –
…
(ii) if a genuine right of substitution exists, this negates an obligation to perform work personally and is inconsistent with employee status … ;
(iii) if a contractual right, as for example a right to substitute, exists, it does not matter that it is not used. It does not follow from the fact that a term is not enforced that such a term is not part of the agreement … .”
12. In this case it is important to identify the actual legal obligations of the parties. It is my determination that there was a genuine and unfettered right to substitute a relief driver when and if the claimant so desired. The remuneration for the relief driver was entirely a matter for the claimant and that relief driver. The claimant was paid whether he did the work or the relief driver did it for him. The use of a relief driver and not delivering services personally was a matter entirely at the discretion of the individual contractor. This is evidenced, not least, by the situation where the claimant, who had a run to do that day, asked another driver to carry out that run so that he could cover his son’s run. It was entirely the claimant’s choice as to how that work was to be conducted. Not all the contractors were individuals. One of the contractors was a limited company with a number of employees who were treated by the respondent in the same way as relief drivers generally were treated. The company did not seek to determine who must, individually, carry out the work. The only restrictions on the right were the contractual obligation on the contractor to provide suitably competent drivers and to ensure that those drivers and their vehicles went through the company’s vetting procedure. I do not regard this to be an unduly restrictive requirement and still left real control on the hands of the individual contractor. I therefore conclude that on the facts of this case, the claimant does not satisfy the test set out in Article 2(1)(b) of the Working Time Regulations and that he is not a worker as defined by those Regulations.
Chairman:
Date and place of hearing: 13 September 2011, Belfast
Date decision recorded in register and issued to parties: