Was a Heating Surveyor Self Employed, Employee or a Worker?
17 April 2019
HELP-LINK UK Ltd v Mrs Wendy Lynch
A heating surveyor has been found to be a freelancer and not an employee in a recent tribunal ruling which is the latest case to have a bearing on the status of so-called gig economy workers.
An employment tribunal found that because of this status, Mrs Wendy Lynch was not entitled to bring claims of unfair and wrongful dismissal against Help-Link, a national supplier and installer of domestic heating systems based in Leeds.
Background:
- Mrs Lynch was engaged as a ‘freelance’ Sales Surveyor from September 2011 until January 2015 and contracted with Hudson Contract Services Ltd (Hudson) who were registered with the Construction Industry Scheme (CIS);
- Hudson undertook an audit concerning the applicability of the CIS Regime against those operatives, which included Mrs Lynch, in the Autumn of 2014 and it was found that some of those operatives were not eligible for inclusion within the CIS arrangement and offered direct employment;
- Mrs Lynch signed a Declaration on 9 January 2015 affirming her self-employed status which continued until January 2018
- Mrs Lynch made claims of unfair dismissal, wrongful dismissal and unlawful deduction from wages relating to Holiday Pay.
In Summary:
- Hudson appropriately engaged Mrs Lynch and supporting evidence was provided;
- Mrs Lynch was paid upon a commission-only basis;
- Mrs Lynch received prospective appointments but was not obliged to undertake them and could decline them if she so wished;
- Mrs Lynch was not subject to any supervision or direct control;
- Hudson provided Mrs Lynch with an annualised statement which confirmed her self-employed status;
- Hudson did provide Mrs Lynch with an ‘External Consultant Information Pack’ which included guidance on dress codes, but the Tribunal found that there was no obligation for her to wear any uniform and it was determined she had never worn any uniform;
- Mrs Lynch was free to set her own hours and it was found she exercised this right and there had been times when she had very little work or no work at all;
- Mrs Lynch continued to file accounts with HMRC and declare herself to be self-employed.
Jacqueline McGuigan, of TMP Solicitors, who acted for Ms Lynch and who also represented Gary Smith, the heating engineer who won a claim against Pimlico Plumbers establishing himself as a worker at the Supreme Court, advised Mrs Lynch may appeal.
Aspire Comment;
This case demonstrates the importance of businesses having the correct contractual documentation and checks in place and to ensure that workers’ employment status is correctly categorised. If you would like to us arrange an audit of your documentation to minimise the risk of potential Tribunal claims, get in touch.
We will keep you informed of any further updates on Gig Economy cases. Click here to read our other articles on this: