Employment Status

[Thanks to Patrick Green and Kathleen Donnelly, of Henderson Chambers, who appeared on behalf of the Appellant, for this summary]

The Court of Appeal yesterday handed down judgment in Autoclenz v Belcher, which primarily concerned the vexed question of employee/worker status. On this issue, the case is authority for the proposition that:

1. the practice of requiring car valeters to notify the company if they were not going to turn up for work was capable of being characterised as 'wholly inconsistent' with an express written term that there was no obligation for them to perform any work, such that the written term did not reflect the true agreement between the parties;

2. it was not necessary to find that the express written terms were a Snook sham (both parties intending to mislead others), as Rimer LJ had stated in Consistent Group v Kalwak [2007] IRLR 560; and Rimer LJ's reasoning was "not strictly necessary to the decision"; [para 48]

3. the Tribunal was "entitled to infer from the evidence recited that the substitution clause did not genuinely reflect the rights and obligations of the valeters", on the basis no real substitution had actually taken place [para 61] (with some hesitation - per Smith and Aikens LJJ).

As to perversity challenges to the decision of the Employment Tribunal, the case is authority for the proposition that:

4. although, as a general rule, it is not possible to mount a perversity challenge unless the court is provided with the evidence which was before the fact finder (usually agreed notes of the relevant evidence or the EJ's notes), it may be possible to mount a perversity challenge simply on the basis of the evidence recited and facts found in the judgment itself. [para 41]