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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cameron v Gary Larmour t/a Alexander Int... [2014] NIIT 1421_13IT (02 January 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/1421_13IT.html
Cite as: [2014] NIIT 1421_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1421/13
CLAIMANT: John Cameron
RESPONDENT: Gary Larmour t/a Alexander Interiors
DECISION
The decision of the tribunal is that the claimant was not an “employee” of the respondent or a “worker” within the definitions set out in the Employment Rights (Northern Ireland) Order 1996 and accordingly his claims for redundancy pay and arrears of wages are dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Miss E McCaffrey
Appearances:
The claimant appeared in person at the hearing.
The respondent did not appear and was not represented.
1. The claimant had lodged a
claim form with the Industrial Tribunals following the ending of his
relationship with the respondent. The claimant set out in his claim form that
he had carried out kitchen fitting for the respondent for almost 20 years. In
fact his claim form claimed that he had been working from 1998 until 4 January 2013.
He said in his form that he worked as a kitchen fitter on a
self-employed basis for the respondent for almost 15 years. He went on to say
that he worked solely for the respondent’s firm Alexander Interiors for the
last ten years as the respondent had kept him in work every day. On Friday 4
January 2013 the respondent telephoned the claimant to say that he was no
longer trading and had closed the doors. At that stage the respondent told the
claimant that he would be declaring himself either IVA or bankrupt. The
correct name of the respondent appears to be Gary Larmour trading as Alexander
Interiors and I direct that the name of the respondent shall be amended
accordingly.
2. The respondent had lodged a response form in the Industrial Tribunals indicating that he was indeed intending to enter into an Individual Voluntary Arrangement, or failing this, seek bankruptcy.
3. His response was that the claimant was a self-employed fitter whom the respondent used to fit a lot of kitchens over the years. He added that up to December 2008 the respondent also fitted for MFI until they closed. His response form stated “At this point he (the claimant) employed three other people. After this I was his main source of work but he still fitted flat packed kitchens for private customers as well as my jobs.”
4. The claimant’s evidence to the tribunal was that he had worked almost exclusively for the respondent. He said that he did solely the respondent’s work. His two sons, who worked along with him did the MFI work until MFI closed in 2008. He agreed that his sons did work for other people and said that his sons worked together as a team whereas he worked together with an apprentice and they had two vans on the road most of the time. The claimant funded his own van, tools and equipment and the accounts of his business were prepared annually. Once his sons qualified as joiners, they were treated as partners in the business.
5. He advised that the arrangement was that every Monday he came to the respondent’s shop and was given instructions as to what he was to do day by day. The work was arranged for him by the respondent and the claimant did not have to contact the customers direct. The claimant explained the position about MFI work by saying that because his sons were coming into his business with him he needed to obtain extra work for them. The respondent had told the claimant that he did not mind the claimant working for other people but that he wanted the claimant to do his work. The claimant also advised that the respondent supplied him and his son with Alexander Interiors uniform.
6. The claimant provided his own van and all his tools. The respondent supplied all fixtures, fitting, screws and glue as well as the kitchen components. The claimant invoiced the respondent for the work he and his sons carried out at an agreed rate. The claimant did not receive any sick pay or holiday pay from the respondent. On one occasion he was off work for a period with a broken leg but got no sick pay. The claimant also advised that he did not receive regular holidays, but often worked through holiday periods. The claimant advised that a considerable number of his invoices, totalling £16500, had not been paid by the respondent in the last year of the business. The claimant had also made a personal loan of £4000 to the respondent to help him out in the short term and this had not been repaid.
The Relevant Law
7. The correct approach to be taken in these cases has been identified and set out in the seminal case of Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2QB 497. In that case Mr Latimer drove a concrete mixing lorry for Readymix Concrete. He was buying the lorry from the company on hire purchase. Both he and the lorry had to wear the company’s uniform. He drove exclusively for the company and agreed to submit to all reasonable orders “as if he was an employee”. However it was held that he was not an employee but an independent contractor, one of the critical features being that he was not required to drive the lorry personally, but could employ a substitute driver.
8. In that case Mr Justice McKenna identified the three important questions to be answered in these cases.
(1) Did the worker undertake to provide his own work and skill in return for remuneration?
(2) Was there a sufficient degree of control to enable the worker fairly to be called an employee?
(3) Were there any other factors inconsistent with the existence of a contract of employment?
9. It is important to note that each case must be considered on its own facts, but there are features which may be considered as relevant in deciding whether or not an individual is an employee or not. The first is the degree of control: the greater the scope for individual judgment on the part of the worker the more likely it is that he will be an independent contractor.
10. Other relevant factors which had been identified are as follows:-
· What was the amount of payment and how was it paid? A regular wage or salary tends towards a contract of service; profit sharing or submission of invoices for said amounts of work done towards independence.
· How far, if at all did the worker invest in his own future: who provided the capital and who risked the loss.
· Who provided the tools and equipment?
· Was the worker tied to one employer or was he free to work for others? How did the parties themselves see the relationship?
· What were the arrangements for payment of income tax and national insurance.
· How was the arrangement terminable?
11. It is also relevant to consider whether for example sick pay was paid or whether there are any contractual holiday or pension entitlements.
Decision
12. In this case the claimant was very direct in saying that he had run his business on a self-employed basis. He produced sets of accounts which showed that he had paid for the cost of his van and tools and equipment which indicates to me that he was a self-employed contractor. He accounted for all his own tax and national insurance and the respondent did not pay the claimant anything in relation to sick pay or holiday pay. Indeed the claimant advised that he normally worked through holiday periods to facilitate the respondent and only took a short holiday.
13. As against this it is clear that the claimant did provide his own work and skill in return for remuneration, and he carried out the work which he was directed to do by the respondent. However there was not any requirement for the work to be carried out personally by the claimant as he could send some of his other staff and in particular his sons to carry out work for the respondent and regularly did so. It seems to me therefore that there was no obligation of personal service in this case. While the claimant himself did do the vast bulk of his work for the respondent, he indicated that once the MFI work had dried up (and even before) his sons regularly undertook work for the respondent and certainly continued to work for the respondent even when they were doing work for MFI. In my opinion this means that the work was not carried out personally by the claimant.
14. The other factors which I take into account are the fact that although the respondent seems to have considered that he had first call on the claimant’s services, the claimant was in fact entitled to work for other people, particularly other kitchen fitters. Although the claimant and his son were asked to wear the Alexander Interior uniform, they supplied their own van and their own tools and equipment, although the materials for their work were supplied by the respondent.
15. When the respondent closed the business, the claimant advised that the respondent had told the claimant, “You will be entitled to your redundancy”. The claimant indicated that this was an indicator that Mr Larmour considered him an employee. Nevertheless, having applied the “multiple test” set out in the Readymix Concrete case, it appears to me that I must consider the overall effect of the position. In this case it seems to me that the fact that the claimant traded as a partnership, that he could therefore send his sons who were his partners to do work on his behalf mitigates against him being considered as an employee. In spite of the fact that the respondent directed where he should work and what work he should carry out, the claimant was nevertheless independent in that he could and did take on other work and had invested in his own business to the extent that he provided vans, tools and equipment. He was also taxed as a self-employed person and did not receive sick pay or holiday pay from the respondent. Accordingly I find that the claimant was not the respondent’s employee and his claim for redundancy pay is dismissed. The claimant raised the issue of the “back pay” he was owed by the respondent, on foot of his invoices, which totalled £16500 according to his figures. To bring such a claim under Article 45 of the Employment Rights (NI) Order 1997 the claimant must meet the definition of “worker” under Article 3(3) of the 1996 Order. Article 3(3) however still requires an element of the worker personally doing work or performing a service, which is not present in this case. Accordingly I can make no award to the claimant in this regard.
16. I have great sympathy for Mr Cameron’s situation as he appeared to me to be an honest and sincere man who had obviously given a great deal of support to the respondent. Unfortunately the respondent had not shown similar support and honour in his dealings with the claimant.
Chairman:
Date and place of hearing: 22 November and 17 December 2013, Belfast.
Date decision recorded in register and issued to parties: