Thread by @JasonBraier

1/ Main v SpaDental: EAT emphasises the need for ET to recognise that a self-employed person can be a worker if not dealing with the company as a client or customer. Appeal allowed.
assets.publishing.service.gov.uk/media/619e11a7…
#ukemplaw

2/ M is a dentist. He brought a WTR claim against SD re entitlement to holiday pay. M had previously had a practice of his own. He sold it but continued to work for the buyer under both a contract of employment as MD & under a service agreement.

3/ Throughout the period from sale of his business until resignation, M paid NICs as a self-employed individual, & also declared himself self employed in bankruptcy proceedings.

4/ M carried out his dentistry at SD's premises, had to provide a limited amount of equipment himself, maintained his own indemnity insurance & was responsible for his own payments for GDC membership.

5/ M agreed that save with SD's consent he would not practice elsewhere other than SD's premises during the hours that those premises were open for surgery. M set his prices for work in collaboration with SD, paid for his own training & shared payment for emergency locum cover.

6/ M had to agree holiday cover with SD & was responsible for supervising support staff engaged by SD & provided to him to fulfil his clinical obligations. It was for M to specify how those staff dressed, including decision on wearing masks/gowns.

7/ On the preliminary question of whether C was a limb b worker, the ET set out the law in brief terms, recording the provisions of Reg 2 WTR & noting the case law referred to. The ET then gave substantive consideration to the question at hand.

8/ In considering whether M was a limb b worker, the ET focused on whether his position was consistent with self-employment, finding M was a self-employed dentist in receipt of support services from SD.

9/ M appealed on grounds mainly focused on an error of law in the assessment of whether he was a worker, including a failure to set out the law. There was also a perversity appeal on some findings of fact, but the EAT ultimately didn't need to resolve that.

10/ The EAT noted from Dray Simpson that a failure to set out even a brief summary of the law is itself a breach of ET r.62(5) & a ground of appeal so long as material, but that the real question is whether the ET appreciated the correct test & applied it to the findings of fact.

11/ On the limb (b) test, the EAT emphasised the need to ask whether the individual carries out a profession or business AND whether the company is a client or customer of that business. As per Westwood, there's no inconsistency between being genuinely self-employed & a worker.

12/ After setting out the analysis of Lady Hale in Bates van Winkelhof, HHJ Tayler noted the need to consider all relevant factors to analyse whether the person is a worker, including questions of integration, control, prominent purpose of the agreement & sometimes subordination.

13/ The ET didn't look past the fact of self-employment, appearing to consider that determinative of the question of whether M was a limb b caselaw & gave no explanation of how integration, control, predominant purpose or subordination played a role in the ultimate decision.

14/ The appeal was thus allowed and the matter remitted to a new EJ, limited to the question of whether M carried out a profession or business undertaking & whether SD was a client or customer of it.