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Chambers & Partners
21/02/2020

Bruno Gil successful in construction industry employment status case

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Harris and Kearny v Excel Brickworks Ltd – Case number 2200566/19

A Preliminary Hearing was held in London Central Employment Tribunal, on 18th and 19th February 2020, to determine the employment status of two men, one a foreman and the other a bricklayer, who had worked for a construction company.  Bruno Gil acted for the Claimants.

In the judgment delivered on Wednesday 19th February, Employment Judge Emery ruled that both Claimants were employees.

The Respondent is a large building company that has contracts to lay bricks on construction sites all over London.  Mr. Harris worked for the company for over 17 years.  His son, Mr. Kearney, had been there less than a year when they were both dismissed without notice.

The Respondent argued that both the Claimants (and all of the improvers, bricklayers, charge hands and foremen who work for them) were self-employed. The Respondent sought to rely on the contract that they had required all their workforce to sign. Amongst other things, that contract (titled as a “Self Employed Contract for Services”) described signatories as ‘subcontractors’ and gave the impression that they could:

  • Do whatever work they wanted to do
  • Refuse any offers of work
  • Work the hours they wished
  • Work in whatever method they decided
  • Leave site without permission
  • Send any substitute with similar experience and qualifications

The Respondent’s argument was rejected by the Employment Tribunal.

Having carried out an analysis of the facts, it was held that the contract did not reflect the actual legal obligations of the parties. Judge Emery held that, in reality, there was a relationship of employer/employee between the Respondent and both the Claimants. For instance, while the contract alleged this right of substitution, on site security and health & safety protocols made this clause unworkable. In fact, there had never been an instance of substitution and it was held that the practice was not acceptable to the Respondent in reality. The same went for issues of control, mutuality of obligations and hours. None of these matters were as the contract described. The fact that the Respondent required its workforce to be on the Construction Industry Scheme, dealing with their own tax returns, did not alter the reality that the Claimants were employees.

Although only a first instance judgment this ruling has implications for all those who have worked for this Respondent and potentially the construction industry as a whole.

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Bruno Gil

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