IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

MR PAUL LENO AND MR ANTONY MARTIN

CLAIMANTS

 

AND

 

 

DRAMA LAB LIMITED

RESPONDENT

 


TRIBUNAL JUDGMENT


 

Reference:                    [2017] TRE115 & [2017] TRE147

 

Hearing Date:                13th February and 14th May 2018

 

 

Before:                                     Advocate Ian Jones, Deputy Chairman              

                                   

 

Appearance:

For the Claimant:           In person

For the Respondent:     Mr Paul Adams and Mrs Pippa Adams, Owners  

 

 

DECISION

 

Mr Martin was not an employee for the purposes of the Law. The Respondent’s argument in relation to Mr Martin succeeds.

 

Mr Leno was an employee for the purposes of the Law. Specifically, Mr Leno was an Article 1A3 employee. The Respondent’s argument in relation to Mr Leno fails.

 

INTRODUCTION

 

1.         Earlier this year, I sat to hear legal argument in a claim brought by Mr Martin (“Mr Martin”) against Drama Lab Limited (“Drama Lab”). The legal argument was focused on whether or not Mr Martin was an employee of Drama Lab for the purposes of the Employment (Jersey) Law 2003 (the “Law”).

2.         Drama Lab had raised the issue as Mr Martin was claiming inter alia compensation for unfair dismissal. Drama Lab’s argument was that Mr Martin was in fact self-employed and therefore not an employee of Drama Lab for the purposes of the Law. It followed, so argued Drama Lab, that Mr Martin could not make a claim for unfair dismissal and therefore that claim must fail.

 

3.         In a related but separate claim Mr Leno (“Mr Leno”) was also seeking compensation for unfair dismissal from Drama Lab. In precisely the same way, Drama Lab submitted that Mr Leno was not an employee for the purposes of the Law and therefore could not make a claim for unfair dismissal. Due to various scheduling difficulties, and some severe weather, Mr Leno’s hearing was delayed until some months after Mr Martin’s.

 

4.         Having heard both legal arguments it became apparent that the subject matter of both claims and arguments was so closely related (so much so that Mr Martin was called as a witness by Mr Leno), not to mention that the dramatis personae in both claims were the same, that I have decided  to deal with them both in one judgment.

 

5.         Irrespective of the decision(s) I have reached in relation to the legal arguments, both cases have the potential to continue as both Mr Martin and Mr Leno have also made discrimination claims against Drama Lab. The next stage in this case will therefore be for a further CMM to take place in order to put a timetable in place to bring this entire dispute to a hopefully swift and efficient conclusion.

 

FACTUAL BACKGROUND

 

6.         The background to this case is relatively straight-forward. Drama Lab is a company that provides a forum for children to learn about, train in and experience the performing arts. It is owned and run by a husband and wife team of Mrs Pippa Adams (“Mrs Adams”) and Mr Paul Adams (“Mr Adams”).

 

7.         As with many cases that come before the Tribunal Mr and Mrs Adams were previously great friends with Mr Martin. Indeed it is that personal relationship which engendered the working relationships described in this judgment. The parties relationship was seemingly ‘ignited’ (to quote Mr Martin) in the summer of 2005, some 4 or 5 years before Drama Lab was even incorporated. Regrettably it seems that that friendship has been destroyed as a result of the events that gave rise to this dispute and indeed the dispute itself. There was a great deal of animosity and upset on both sides during both hearings, which sadly is both not uncommon and always unhelpful to the resolution of any issue.

 

8.         The Tribunal heard essentially a full day’s evidence in relation to each of Mr Martin’s and Mr Leno’s claims and while I will deal with their arguments and situations separately below, there was a considerable amount of general information which was relevant to both claims which I deal with here.

 

9.         It seemed clear to me that in and / or around 2014, Mr Martin had been involved in helping to run summer workshops at Drama Lab. Indeed it seemed that he had been doing that ‘on and off’ since around 2012. The details were far from precise but it was clear that Drama Lab and Mr Martin had worked together, on several occasions, as an almost natural extension of the pre-existing friendship between Mr Martin and Mr and Mrs Adams.

 

10.      It seemed to me that before 2015 the arrangements were very much ad hoc and informal, although Mr Martin was ‘engaged’ by Drama Lab and paid for his services, for example as a ‘guest director’. It was during this time that Mr Leno (Mr Martin’s partner) was introduced to Mr and Mrs Adams.

 

11.      Towards the end of 2014 it seems that for a number of reasons the parties began discussing the possibility of Mr Martin and Mr Leno moving to Jersey to be involved with Drama Lab on a more permanent or regular basis. On the basis of the evidence that I heard Mr Martin had become entirely fed-up with life in the UK and found the idea of moving to, living and working in Jersey appealing. Mr Leno by contrast did not really focus on any particular personal desire to live in Jersey. The impression I received was that Mr Leno considered any potential move to Jersey as professionally beneficial as well as it being something that his partner Mr Martin was keen to explore.

 

12.      I must say that the impression Mr Leno gave in this regard did not ring entirely true in my view. I was left with the distinct impression that Mr Leno, in his evidence, was at pains to paint the decisions and arrangements as very much formal business decisions which for the most part he was detached from. While I accepted that he would be less motivated than Mr Martin by his personal relationship with Mr and Mrs Adams, the decisions he made were in my view also very much motivated by personal considerations.

 

13.      Discussions continued throughout the first half of 2015 and after some difficulty with obtaining the relevant licenses from the Jersey Population Office (licenses were only granted following an appeal process), Mr Leno and Mr Martin were eventually granted licenses to move to Jersey and join the Drama Lab team. I pause at this juncture to note that the legal and / or regulatory position in relation to Mr Leno’s and Mr Martin’s licenses and / or permits is entirely unclear to the Tribunal. Equally unclear is the position of Drama Lab. What was plain to the Tribunal is that none of Mr and Mrs Adams, Mr Martin or Mr Leno seemed to have any understanding of the processes that had been engaged or precisely what the outcome of that process was.

 

14.      It is true that licenses were eventually granted to Drama Lab in respect of Mr Martin and Mr Leno but on the basis of the evidence that I heard / was presented with I have no confidence that Drama Lab (or Mr Martin and Mr Leno) had any proper understanding of the processes at hand. I therefore have concerns that the Jersey population office may have made its decisions based on incorrect or misleading information. I should be clear that I am not suggesting nor do I suspect that anything untoward has taken place in this respect. Rather, it would seem that an issue which may could have been, at least in part, determinative of these preliminary issues (i.e. whether or not Mr Martin and Mr Leno were employees of Drama Lab for the purposes of the Law) cannot be.

 

15.        Regrettably, I am unable to place any reliance on the processes involving the population office and therefore such processes are of little evidential value. The only evidential value of this process and the correspondence surrounding it is that it seems clear Mr and Mrs Adams did in fact want to employ, for the purposes of the Law, Mr Martin and Mr Leno. Indeed, Mrs Adams in her evidence made it clear that she did want to employ both gentlemen. Drama Lab’s case was that it was Mr Leno and Mr Martin who did not want to be employed by Drama Lab. Of course, both Mr Martin and Mr Leno disputed this, asserting that they were both employees. Accordingly, I place no reliance for the purposes of this judgment on the processes involving the population office, other than confirmation that Drama Lab was desirous of employing Mr Martin and Mr Leno.

 

16.        It was also uncontroversial / agreed that Mr Leno’s primary function would be as a voice coach and would operate under the banner of ‘VoceLab’, an affiliate of Drama Lab. As I understood it, Voce Lab was a trading label designed to enhance the business profile of Drama Lab; another ‘string to our bow’ in the words of Mrs Adams. Mr Leno’s role was principally under the ‘Voce Lab’ label. By contrast Mr Martin’s role was to be an acting tutor and it seemed that he would be working under the Drama Lab label.

 

THE LAW

 

17.      Article 1A of the Law states as follows:

 

“1A ’Employer’ and ‘employee’

(1)  In this Law –

                   (a)        ‘employer’ means a person who employs another person; and

                   (b)       'employee' means a person who is employed by an employer.

(2)  For the purposes of paragraph (1), a person is employed by another person if the first person works for the second person under a contract of service or apprenticeship with the second person.

(3)  For the purposes of paragraph (1), a person is also employed by another person if the first person enters into any other contract with the second person under which –

(a)        the first person undertakes to do, or to perform personally, work or services for the second person; and

(b)       the status of the second person is not that of a client or customer of any profession or trade or business undertaking that is carried on by the first person.

(4)  It is immaterial whether a contract to which paragraph (2) or paragraph (3) refers is express or implied.

(5)  If the contract is express, it is immaterial whether it is oral or in writing.”

 

18.      As noted by Mrs H Griffin, Chairman, the term ‘employee’ is widely defined in Article 1 of the Law Bisson -v- Dore & 1 Or. [10th February 2017 D-34/2016] As that decision makes clear the Law draws a distinction between:

 

(i)                   a ‘1A2 employee’, i.e. someone who is employed pursuant to a contract of employment;

(ii)                 a ‘1A3 employee’, i.e. someone who provides their personal services as part of a profession, business undertaking carried on by someone else; and

(iii)                a self-employed individual who carries on a profession or a business undertaking on his or her own account and who enters into contracts with clients or customers to provide work or services to them.

 

19.      I have had regard to the decision in Bisson and consider that it represents the Law of Jersey on the question of when someone is to be regarded or treated as ‘employed’ or ‘self-employed’ for the purposes of the Law. Accordingly I have applied the reasoning in Bisson to this case.

 

20.      As is made clear in Bisson, and as is well-known, an Article 1A2 and 1A3 employee is a distinction without a difference in so far as both are ‘employees’ for the purposes of the Law. In the context of these preliminary issue hearings the question for the Tribunal was whether or not Mr Leno and Mr Martin were either Article 1A2 / 1A3 employees (in which case they were employees and could make a claim for unfair dismissal) or they were self-employed, as contended for by Drama Lab.

 

21.      Per the judgment in Bisson for a person to be an Article 1A2 employee that person must work under a contract of employment. In order to be understood as working under a contract of employment, three elements must be present in that contract:

 

(i)                   there must be a ‘mutuality of obligation’ between the parties so that there is in fact / law a contract;

(ii)                 the contract must contain a provision or provisions that the individual provides personal service; and

(iii)                the employer must exercise a sufficient degree of control over the work carried out by the individual so as to make the employer the master.

 

22.      Article 1A3 provides a wider definition of ‘employee’ specifying that:

 

(i)                   a contract must exist between the employer and employee;

(ii)                 that pursuant to that contract there is an obligation on the individual to provide personal service to the employer; and

(iii)                the person for whom the personal service is performed is not a client or a customer of the individual undertaking the work.

MUTUALITY OF OBLIGATION

 

23.      In Bisson the Tribunal considered the concept of ‘mutuality of obligation’ (at paragraphs 62-64) and concluded (citing Mollet -v- Sigma Group Limited [JET 19/2013] that:

For a contract of employment to exist there must be, at the root of that contract, an obligation on the employer to provide work and an obligation on the employee to accept an offer of work”.

 

24.      The Tribunal (in Bisson) concluded that if there is a mutuality of obligations between the parties but that there is no obligation to offer or accept work, then a person cannot be an Article 1A2 employee, but they could still be an Article 1A3 employee; if ‘Marchem mutuality’ is absent then a person cannot be an Article 1A2 employee.

 

PERSONAL SERVICE AND CONTROL

 

25.      Again, following Bisson (see paragraphs 65-69) it is clear that once it has been established that there is a contract the next stage is to consider whether or not the individual is required to personally perform the obligations that arise under the contract. If the individual is not required to perform the obligations personally then they cannot be either an Article 1A2 or Article 1A3 employee; as per Bisson without personal performance an individual cannot be an employee as a matter of Jersey Law.

 

26.        The key issue is assessing whether or not personal service is required, and the Tribunal, following Bisson has reference to the English Court of Appeal in Pimlico Plumbers -v- Smith [2017 EWCA Civ 51] and the following five principles:

 

(i)                   an unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally;

(ii)                 a conditional right to substitute another person may or may not be inconsistent with personal performance.  It will depend on the precise contractual arrangements and, in particular, the extent to which the right of substitution is limited or occasional;

(iii)                a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance;

(iv)               a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance; and

(v)                 a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.

 

27.        As to control, the Tribunal in Bisson made it clear that in order for a person to be an Article 1A2 employee the employer must exercise control over the employee. In the absence of control it is not possible to be an Article 1A2 employee as a matter of Jersey law. However, control is not a relevant consideration in deciding whether or not an employee is an Article 1A3 employee. As Bisson makes clear (at paragraph 71) control means that the ‘employer must have ultimate authority over the employee so that the employee is subject to the employer’s orders and directions’.

 

28.        While I have found the analysis contained within Bisson of great assistance it should also be noted, and I do note, that each case and claim is also fact specific. I consider the arguments put by and evidence pertinent to Mr Leno’s and Mr Martin’s arguments separately below.

 

MR MARTIN

 

29.      Much of this hearing was taken up with Mr Martin’s evidence. In addition to his witness statement Mr Martin was also required to give substantial oral evidence under questioning both from the Tribunal and Mr and Mrs Adams. I have considered everything that Mr Martin covered in his evidence and in the answers he provided to his questions and I set out the relevant factual findings I have made in the following paragraphs.

 

30.      Mr Martin contended that he was a 1A2 employee and sought to argue therefore that he had a contract of employment with Drama Lab pursuant to which he was under the control of Mr and Mrs Adams / Drama Lab, and pursuant to which he was required to and did provide personal service. Mr and Mrs Adams disputed this and instead asserted that Mr Martin was in fact self-employed.

 

31.      The position, which seemed to be agreed, was that Mr Martin submitted invoices for his time teaching classes. Mr Martin’s position was that he was not able to organise ‘getting himself on the payroll’ (which he blamed on Mr and Mrs Adams) and stated that he therefore had no choice but to submit invoices.

 

32.      Mrs Adams evidence was that it was agreed between Mr Martin and Drama Lab that he was to submit invoices for his time to Drama Lab and that Drama Lab would pay him upon receipt of his invoices. It was agreed between the parties that Mr Martin was paid by Drama Lab for his time in teaching various classes. It is also seems clear that Mr Martin’s teaching times were reasonably uniform. From his evidence, and as supported by the invoices he seemed to be paid for seven hours of work each Saturday during term time and more irregularly for 3 hours on a Friday afternoon / evening. The rate of pay, £20 p/h was not in dispute.

 

33.      Mr and Mrs Adams for their part really didn’t dispute that the Friday and Saturday classes and hours and pay (as set out above) was in principle what was agreed between the parties. Pausing here, it seemed clear to me that a contract did exist between Mr Martin and Drama Lab. The broad terms seem to be that he would teach for 6 hours each Saturday in term time and also be available to teach a more irregular class on Friday afternoons / evenings. Further the agreement seems to be that Mr Martin would submit invoices for his time and that he would be paid at a rate of £20 p/h. I therefore find that Mr Martin did have a contract with Drama Lab on the terms as set out above.

 

34.      The next question, applying the principles as set out above in section 3 is whether or not Drama Lab exercised control over Mr Martin and whether or not Mr Martin owed Drama Lab an obligation to provide it with personal service. The crucial evidence in this regard was Mr Martin’s actual performance under the contract. The evidence was that Mr Martin only taught on 48 of the 66 Saturdays that he was expected to be teaching.

 

35.      Following Mr Martin’s argument (that he was an 1A2 employee) he was obliged to offer personal service to Drama Lab and he was under the control of Drama Lab. However, the evidence was that Mr Martin was present for less than 75% of his contractually mandated teaching days. Mr Martin explained that this was due to other professional obligations in the UK.

 

36.      Both parties also agreed that Mr Martin’s classes always went ahead in his absence but they would be taught by either ‘Andre’ (a Drama Lab employee as I understood it) or Mr Adams or Mrs Adams. Mr Martin gave evidence that Mr and Mrs Adams had agreed with him that he was free to come and go as he pleased and that he was able to put his UK business interests and opportunities first.

 

37.      Mr Martin’s position was that his ‘coming and going’ like this would have had and in fact did not have any detrimental effect on Drama Lab as the classes were always taught and he always ensured that somebody else was available if he couldn’t make it. Mr and Mrs Adams unsurprisingly did not accept these contentions and gave evidence that on some occasions there was less than 24 hours’ notice of Mr Martin’s absences and on other occasions (when one of them was not the substitute teacher) they did not know about an absence or issue as to availability until after the fact. Mrs Adams gave evidence that she had received a number of complaints in this regard.

 

38.        Mr Martin’s clear position was that this level of flexibility was what had been agreed between the parties and formed a part of his contract of employment. I asked Mr Martin, as a business-man / owner himself, whether or not he would have ever entered into such a contract with an ‘employee’. He conceded that if he had been in the position of Mr or Mrs Adams, he would not have agreed to those terms. However, Mr Martin made the point that it was not about what he would have done in the same position, but rather what in fact Mr and Mrs Adams did do / agree to.

 

39.        Mr Martin was of course entirely correct in this statement but the evidence as he presented it caused him some not insignificant difficulties. Turning to the question of whether Mr Martin was a 1A2 employee, it seemed to me that if Mr Martin did indeed have the degree of flexibility in his contract that he said he did, it is impossible to see how it could be said that Drama Lab exercised any degree of control over him at all. The contract as described by Mr Martin would provide Drama Lab with next to no control over him as the ‘employee’ and therefore based on his own evidence Mr Martin could not be a 1A2 employee.

 

40.        However, as may be apparent, I had some difficulty in accepting that Mr and Mrs Adams had agreed to the terms that Mr Martin argued for. It struck me as inherently unlikely that there was any agreement that Mr Martin could ‘come and go’ in the way he described. The potential for missing classes and causing Drama Lab problems was too great for Mr and Mrs Adams to ever agree to that. I did however accept that there was an agreement Mr Martin could go to the UK and miss classes by prior arrangement. I believed Mr Martin when he said that he had tried to manage Mr and Mrs Adams’ expectations as to the potential for a priority shift and that they would need to be prepared to accommodate that.

 

41.        However, I accepted Mr and Mrs Adams’ evidence that Mr Martin did in reality come and go as he pleased and that they had very little or indeed any control over that. Mr Martin very much gave the impression that he was a law unto himself and simply put a somewhat unreliable member of the Drama Lab team. I find therefore that the requisite level of control was absent in the operation of the contractual relationship between Mr Martin and Drama Lab. Accordingly I find that Mr Martin cannot as a matter of law be a 1A2 employee.

 

42.        Notwithstanding Mr Martin’s position that he was a 1A2 employee (which I have found he was not) I must then go on to consider whether or not he was a 1A3 employee. As set out above the question of control is not relevant to the question of being a 1A3 employee and so the above findings cannot rule out this possibility.

 

43.        In my judgment, the crucial evidence here was the evidence that Mr Martin substituted someone else from Drama Lab to cover his absences. Given that he was absent for nearly 30% of his Saturday classes, on his case pursuant to his contract, then the question of whether or not Mr Martin was obliged to perform his services personally arises. Given that Mr Martin evidently did substitute other people, including Mr and Mrs Adams to cover his classes, I am satisfied that Mr Martin did have a right of substitution in his contract, with Drama Lab; it is difficult in the circumstances described to see how Mr Martin could not be understood as being entitled to substitute himself with another person or persons to undertake his work; that is in fact what he did, repeatedly and frequently.

 

44.        Applying the principles set out above, I find that the way in which Mr Martin substituted ‘Andre’ and Mr and Mrs Adams to undertake his work (by teaching his classes) to be inconsistent with an obligation to provide personal performance. In my view the manner in which Martin was prepared or able to de-prioritise his teaching obligations, sometimes at very short notice and sometimes without even telling Mr and Mrs Adams (on Mr Martin’s case his employers) points to an unfettered right to substitute another person to undertake his work.

 

45.        If I am wrong to define the right of substitution as ‘unfettered’ I note that the frequency with which Mr Martin exercised this right of substitution could not be described as ‘limited’ or ‘occasional’. In my view the frequency of Mr Martin’s absences, and his consequent unreliability, is not at all suggestive of or consistent with an obligation to provide personal service. Moreover, I find that Mr and Mrs Adams were not required to (nor did they) ever give consent to Mr Martin substituting himself. Mr Martin made those decisions unilaterally. On his account Mr Martin was entitled to do just that and did.

 

46.        Finally, there was no evidence before the Tribunal that any system or mechanism was in place to manage Mr Martin’s absences and substitutions. Indeed there was very little dispute that he came and went as he pleased. As above Mr and Mrs Adams evidently had very little control over his movements and Mr Martin as a result could not be described as reliable. In the absence of any procedure or mechanism to manage Mr Martin’s movements I am not persuaded that the true nature of his bargain with Drama Lab was one where he was obligated to provide personal service.

 

47.        In my view, the bargain amounted to no more than saying it was the preference of Drama Lab that he did teach the classes. It was optimal when he did teach the classes and Drama Lab would afford him that opportunity and seize such opportunity on behalf of its students. However, on occasion, as it transpired approximately 30% of the time, Mr Martin would not be available.

 

48.        I am not therefore persuaded that Mr Martin had any agreement with Drama Lab where he was obligated to provide personal service. I am persuaded that while Mr Martin did teach classes for Drama Lab, and was paid for teaching those classes, he dictated which classes he would teach and which he would not. He would do so for the most part without any real reference to Drama Lab and in my view the classes continued and were for the most part a success in spite of Mr Martin’s absences. I should add that I have no doubt, based on the evidence I heard and that I have read, that when he did teach classes Mr Martin’s contribution was considerable. I have no difficulty in accepting that Mr and Mrs Adams’ strong preference was for Mr Martin to teach the classes.

 

49.        I find that although Mr Martin did have a contract with Drama Lab, there was no obligation on Mr Martin to provide personal performance. It follows that Mr Martin was not an employee for the purposes of the Law and therefore he cannot bring a claim for unfair dismissal.

 

50.        If I am wrong in that finding I also note the provisions of Article 1A3(b) of the Law which states:

“…the status of the second person is not that of a client or customer of any profession or trade or business undertaking that is carried on by the first person.

In my judgment the fact that Mr Martin invoiced Drama Lab directly for his time is significant. In my view, by raising invoices for his time, his professional time, Mr Martin places Drama Lab into a position where it is a client of his profession or business undertaking. Mr Martin is an acting coach / teacher by profession and he invoices Drama Lab for his time when he teaches.

 

51.        In my view, Mr Martin’s customers are not the students. The students paid Drama Lab for their lessons and were therefore customers / clients of Drama Lab. Drama Lab then, in turn, would pay Mr Martin for his professional time. In my judgment, even if Mr Martin was obligated to and / or in fact did provide Drama Lab with personal performance (which I do not find he did) he in any event falls outside the definition of a 1A3 employee by reference to Article 1A3(b) of the Law.

 

MR LENO

 

52.      Mr Leno’s position was the same as Mr Martin in that he was arguing he was a 1A2 employee. i.e. he was arguing that there was a contract between him and Drama Lab, that he was obligated to provide personal service and that he was under the control of Drama Lab.

 

53.      The first question therefore is whether or not there was a contract. Having considered all of the evidence I am satisfied that there was a contract between Drama Lab and Mr Leno. I find that the nature of the bargain was that Mr Leno would provide singing and / or vocal coaching under the Voce Lab label. Mr Leno would not be paid by Drama Lab but he would be able to charge all Voce Lab students £30 p/h. The evidence seemed to be that the students were invoiced by Voce Lab, but in my view this was entirely irrelevant. ‘Voce Lab’ was simply a label for the service that Drama Lab provided. Pursuant to an agreement between Drama Lab and Mr Leno, Mr Leno would put on the various lessons and would be paid directly for them by the students, or more accurately, their parents.

 

54.      In my judgment, the nature of the bargain was that Mr Leno would be provided with the forum and opportunity to be paid for singing / vocal teaching / coaching. Mr Leno would be paid directly by his students (or in reality their parents) for these lessons. For their part Drama Lab’s business profile and reputation would be enhanced by their being able to provide this additional service / facility. In the words of Mrs Adams ‘another string to our bow’. In my view the nature of the ‘deal’ was that it was very much up to Mr Leno as to how successful ‘Voce Lab’ was (or not) but that Drama Lab would support the venture and take the risk of their reputation being damaged, with the potential that the reputation would be enhanced.

 

55.      I was not clear as to what proportion of Mr Leno’s students were referred to him / ‘Voce Lab’ from Drama Lab, but I understood that the pool of students was very much shared and it would be surprising if there were not a significant number of Drama Lab referrals as it would be in the interests of all parties to make such referrals.

 

56.      It was also agreed between the parties that initially Drama Lab would not receive any commission from ‘Voce Lab’s’ takings. i.e. Mr Leno would keep all fees that he invoiced under the ‘Voce Lab’ banner. It is not clear precisely why or when but it was also agreed that after a period of time, where ‘Voce Lab’ (and Mr Leno) were evidently very successful, that Drama Lab would start receiving commission from ‘Voce Lab’. Somewhat strangely, and again the evidence was unclear in this regard, Drama Lab stopped receiving such commission after a period of time.

 

57.      While the finer points of detail were impossible to pin down, there was in fact no dispute that initially Drama Lab received no commission, and then after a period of time that it started receiving commission. It was also agreed that after a period of commission being payable, the commission payments then stopped.

 

58.      Turning to the question of control, there was little or no evidence that Drama Lab exercised any control over Mr Leno at all. The agreement as I have found it to be suggests that Mr Leno worked largely independently of Drama Lab and Mr and Mrs Adams. I have no doubt that it was a collaborative and symbiotic relationship but I was not presented with any evidence that Drama Lab exercised any control over Mr Leno at all. It follows I do not find that Mr Leno can have been a 1A2 employee.

 

59.      Moving on to consider whether or not Mr Leno was a 1A3 employee it is first necessary to consider whether or not pursuant to the contract that I have identified above, Mr Leno undertook to provide and in fact did provide personal service to Drama Lab. Unlike Mr Martin’s situation, there was no suggestion that Mr Leno did not teach the classes at ‘Voce Lab’ himself or that he exercised any right of substitution (if indeed he had one). In the absence of written terms, and in the case of both Mr Leno and Mr Martin I have necessarily focused on how each of them discharged their obligations to Drama Lab.

 

 

60.      In Mr Leno’s case I find that he undertook to and in fact did provide Drama Lab with his personal service. The agreement was that Mr Leno would teach classes under the ‘Voce Lab’ label, thus enhancing the reputation of Drama Lab and building its profile. Mr Leno plainly did this himself and it was clear to me that this is what Drama Lab wanted and bargained for. Having concluded that Mr Leno did undertake to perform personally for Drama Lab it is then necessary to consider the second part of the definition contained in Article 1A3(b) of the Law: namely that the status of Drama Lab is not that of a client or customer of any profession or trade or business undertaking that is carried on by Mr Leno.

 

61.        In my judgment Mr Leno also passes this element of the test in that it is difficult to see how or why Drama Lab could be understood to be a client or customer of Mr Leno. As we have seen, Mr Leno invoiced his students / their parents directly. Those invoices were issued under the ‘Voce Lab’ banner but the payments were made directly to Mr Leno. Simply put, Drama Lab paid Mr Leno nothing. The bargain struck between Mr Leno and Drama Lab did not contain any provision for Drama Lab paying Mr Leno. In fact, as we have seen, the bargain evolved to facilitate Mr Leno paying Drama Lab a commission, at least for a limited period of time.

 

62.        I have also considered the ‘dominant purpose’ test as set out in Bisson (at paragraph 69). Per the Tribunal in Bisson:

 

Elias J (as he then was) set out a ‘dominant purpose’ test in order to draw a distinction between employees, workers (1A3 employees) and those engaged in their own business. He stated that if the dominant feature of the arrangement between the two parties was that the individual was to provide personal service to the other, then, even if the normal prerequisites of employment were absent, the individual was likely to be a worker, or, in Jersey, a 1A3 employee.

 

63.        In my judgment, the arrangement between Drama Lab and Mr Leno does lack the usual hallmarks of an employee – employer relationship; most notably the fact that there was no obligation on Drama Lab to pay Mr Leno a salary, and Drama Lab did not in fact pay Mr Leno a salary. However, I find that the dominant purpose of the arrangement was for Mr Leno himself to provide the vocal coaching / singing lessons under the ‘Voce Lab’ label. Drama Lab wanted to expand its offering to include ‘Voce Lab’, and Drama Lab wanted Mr Leno himself to spearhead that effort.

 

64.        Accordingly I find that Mr Leno was a 1A3 employee for the purposes of the Law and that therefore he is able to pursue his claim for unfair dismissal against Drama Lab.

 

CONCLUSION

 

65.      As indicated above, irrespective of the outcome of the preliminary issue hearings, both Mr Leno and Mr Martin also made discrimination claims against Drama Lab; it was inevitable that there would be a further case management meeting in respect of each case.

 

66.      In the circumstances a further case management meeting will be scheduled and I propose to give directions to move both cases to a final hearing. A decision will be made at that hearing as to whether or not the cases will be joined going forwards.

 

 

 

Advocate Ian Jones, Deputy Chairman                                                   Date:

 

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Page Last Updated: 01 Aug 2018