IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
MR DAVID ALBERT COLE
MR EDWARD JONES & MRS KATHRYN LE SEELLEUR-JONES
Reference:  TRE036
Hearing Date: 25
H G Griffin, Chairman
For the Claimant: Mr
Cole, in person
For the Respondents: Mrs
Le Seelleur-Jones & Mr Jones
It is the judgment of the Tribunal that the Claimant
was not an employee of the Respondents; he was a self-employed person who was
carrying on a business undertaking on his own account. Consequently, the Claimant is not
entitled to bring his claims in the Tribunal and, accordingly, they are struck
1. By a Claim
Form presented on 12 March 2018, the Claimant brought the following complaints:
dismissal (failure to give notice); and
c) Unpaid holiday
2. The Respondents
defend the Claims on the grounds that the Claimant was not an employee of the
Respondents but a self-employed person who was carrying on a business
undertaking on his own account.
3. A Tribunal
hearing ("Hearing") was convened to establish whether the Claimant
a) an employee as
defined under Article 1A of the Employment (Jersey) Law 2003 ("EJL 2003");
self-employed person who was carrying on a business undertaking on his own
4. The Claimant
and Mrs Seelleur-Jones (“SJ”) each provided witness statements and
gave evidence under oath. The Claimant, in breach of the Tribunal's Orders,
only provided his witness statement on the morning of the Hearing. However, the
Claimant's statement was short and, having read its contents, the Respondents
confirmed that they wished to proceed.
5. In either 2010
or 2011, SJ responded to the Claimant's small advertisement in the Jersey
Evening Post (“JEP”):
“EXPERIENCED gardener £9 per
6. The Claimant
advertised in the 'Gardening’ section of the JEP rather than in the
'Situations Wanted" section. The Claimant explained in his evidence that
he had previously tried advertising in 'Situations Wanted' but "nothing came of it". According to the Claimant, when he advertised
in the JEP, he usually received approximately five contacts. The Claimant’s evidence was that
he would “take what came along”.
The Respondents submitted that, by advertising in 'Gardening', the Claimant projected
himself as being self-employed.
7. The Claimant
and SJ negotiated terms and entered into an oral agreement whereby the Claimant
worked four hours per week at £10 per hour. During their negotiations, the Claimant
increased his hourly rate from his advertised £9 per hour to £10
per hour in order to:
a) reflect the
work required in the garden; and
b) to include the
disposal of the garden waste.
8. Initially, the
Claimant’s days were relatively random, but after a time, the Claimant settled
into a routine of working every Thursday afternoon. SJ then requested that the Claimant
change to mornings and he then worked on Friday mornings. The Claimant attended
work at all times for approximately 48 weeks of the year, in all weathers.
9. Except for the
lawnmower, the Claimant provided his own gardening equipment. The Claimant gave evidence that the
lawnmower was too large to fit in his small van and too heavy to unload at
10. If the
Claimant wanted to take annual leave, take the day off (eg for a funeral) or was unwell, he simply informed SJ that he
would not be working that day.
There were also occasions when SJ informed the Claimant that he could
not work because there was no access to the garden.
Respondents did not pay the Claimant if he did not work, no matter what the
reason for his absence. The
Claimant did not receive holiday pay. According to the Claimant, he did not
raise the issue of lack of holiday pay because he did not want to lose the
12. SJ was not
always present when the Claimant was working. The Claimant was able to access the
garden and, if SJ was not at home, she left the Claimant’s money in in a
safe place for the Claimant to collect.
13. If the
Claimant did not work as expected, there were no adverse consequences (eg warnings or
disciplinary processes) and the Claimant’s money simply remained in the
safe place until the Claimant did attend to carry out the work.
14. Occasionally, SJ
would identify jobs which she noticed required the Claimant’s attention,
but the parties agreed that, for the most part, the Claimant worked
unsupervised. The Claimant gave
evidence that it was “obvious”
what jobs needed to be undertaken and SJ gave evidence she did not supervise
the Claimant because she was buying in his services as an experienced gardener.
Personal performance/personal service
15. At no point
during the time that the Claimant worked for the Respondents did anyone else
act as a substitute for the Claimant. The Claimant was clear that he did not
employ anyone else and SJ expected the Claimant to personally carry out the
gardening work in accordance with their agreement. She did not expect the Claimant to send
someone else to undertake the work.
Tax and social security
16. The Claimant
gave evidence that, having retired, he was not liable for social security
contributions. However he did pay his own tax.
17. The Claimant
was clear in his submissions that he considered himself to be an employee with multiple
employers. In his words, he was "employed
for two, three or four hours to do the gardening and I then to move on to
18. The Claimant
was adamant that he was not self-employed or a "contractor". He believed that in order to be a contractor he
would have to “register”
and he stated that he never had any need to be a contractor. The Claimant said
that if he were a contractor he would have placed advertisements in Yellow
Pages and would then have had to employ other people; he did not think it was
worth employing others and preferred to work alone.
Respondents submitted that the Claimant was not an employee because:
a) there was no
mutuality of obligation between the parties; and
Respondents did not exercise any control over the Claimant who worked
20. Article 1A EJL
’Employer’ and ‘employee’
(1) In this Law –
means a person who employs another person; and
means a person who is employed by an employer stop
(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 –
first person undertakes to do, or to perform personally, work or services for
the second person; and
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
(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.”
21. In the case of
Bisson v Doré & Red Appco Cabs Limited
D-34/2016, the Tribunal analysed in detail both the provisions of Article 1A
EJL and the relevant English case law. The Tribunal detailed the distinction between:
a) individuals who
are ‘employees’ under Article 1A(2) (“1A(2)
those who are employed under a contract of service (more commonly known as a
contract of employment);
b) individuals who
are ‘employees’ under Article 1A(3) (“1A(3)
those who provide their personal services as part of a profession or business
undertaking carried on by someone else (classified as a ‘worker’ in
the UK); and
c) self-employed individuals
who carry on a profession or a business undertaking on their own account and
enter into contracts with clients or customers to provide work or services to
[see per Lady Hale in Bates van Winkelhof v Clyde & Co LLP & Another  1 WLR 2047]
22. In the UK, the
distinction between (a) and (b) above is of great importance; those who fall
under (a) enjoy more enhanced employment rights than those termed as
‘workers’ under (b). In
Jersey, however, both groups are treated identically; they are both
‘employees’ for the purposes of EJL 2003, each enjoying identical
rights arising from that employment status.
In order for the individual to be a 1A(2)
Employee, the following three elements must be present:
a) there must be
a 'mutuality of obligation' between the parties (to the extent that the
employer is obliged to provide work to the employee and the employee is obliged
to accept it [Marchem (Europe Limited) v Carré  JRC075];
b) the contract
must contain a requirement that the individual provides personal service; and
c) 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.
24. In order for
the individual to be a 1A(3) Employee:
a) there must be
a contract between the parties (ie there must be mutuality of obligation insofar as there is
an exchange of promises between the parties in line with a normal contract);
b) the contract
must contain a requirement that the individual provide personal service; and
c) the person for
whom such service is performed must not be a client or customer of the
individual undertaking the work.
25. As stated in Red
Cabs, if an individual is a 1A(2) Employee, that individual will also automatically
be a 1A(3) Employee. Therefore, in
practical terms, the question of whether or not an individual is a 1A(2)
Employee is effectively irrelevant for the purposes of identifying an
individual’s employment status and the Tribunal need only apply the tests
relevant for a 1A(3) Employee. By the same token, the question of whether or
not there was ‘mutuality of obligation’ between the parties is only
relevant for determining whether a person is a 1A(3) Employee insofar as it
relates to whether or not there were contractual relations between the parties
(rather than whether the employer was obliged
to provide work and the employee obliged
to accept it).
Personal performance/personal service
26. Whether or not
the individual is obliged to provide personal service under a contract (ie is require to personally perform that
contract) is key to the question of whether or not an individual is an employee
or is self-employed. In the absence of ‘personal performance’ or
‘personal service’, an individual will necessarily fall outside both
Article 1A(2) and 1A(3) EJL 2003; put quite simply, without personal
performance or personal service an individual cannot be an
27. The issue of
whether an individual is required to provide personal service or personally
perform a contract will be fact sensitive.
The terms of the contract (be it written or oral) must be examined to
establish whether it includes an express or an implied right of substitution, ie was the individual entitled to
provide a substitute to undertake the work or was there a requirement that the individual
personally perform or undertake that work?
28. Where a
substitution clause appears to exist, the Tribunal will look at the evidence to
ensure that it reflects the true nature of the relationship between the parties
[Consistent Group Ltd v Kalwak  IRLR 560].
29. When assessing
the question of personal performance or personal service, the Tribunal will
consider the following five principles as identified in Pimlico Plumbers
Limited & another v Smith  EWCA Civ 51, and which the Tribunal
endorsed in Bisson v Doré & Red Appco Cabs Limited D-34/2016:
a) an unfettered
right to substitute another person to do the work or perform the services is
inconsistent with an undertaking to do so personally;
b) 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;
c) 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;
d) 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
e) 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
What is the nature of the
relationship between the parties?
30. If the Tribunal
finds that the individual is required to personally perform the contract, the Tribunal
must then consider the nature of the relationship between the two parties; was
the person to whom the individual was providing personal service a client or
customer of the individual who was undertaking the work?
31. In Bates van
Winkelhof, Lady Hale approved comments made in the EAT case of Cotswold
Developments Construction Ltd v Williams  IRLR 181. In that case, Langstaff J made the
“… A focus on whether the purported worker actively
markets his services as an independent person to the world in general (a person
who will thus have a client or customer) on the one hand, or whether he is
recruited by the principal to work for that principal as an integral part of
the principal's operations, will in most cases demonstrate on which side of the
line a given person falls.”
32. It is worth
noting that in Bates van Winkelhof, the Supreme Court found that the
claimant was a ‘worker’ (a 1A(3) Employee in Jersey). A key factor in this decision was the
fact that the claimant was not free to market her services as a solicitor to “the world in general”.
33. For the reasons set out in paragraph 25 above, I did
not consider the question of whether the Claimant was a 1A(2) Employee. I only turned my mind to the question of
whether the Claimant was either:
a) a 1A(3) Employee; or
b) a self-employed individual who carried on a profession
or a business undertaking on his own account.
Was there a contract between the parties?
34. As set out above, the terms of contract were agreed
orally between the parties. There
was 'mutuality of obligation" between the parties insofar as there was an
exchange of promises between the Claimant and SJ that the Claimant agreed to
undertake gardening for the Respondents in exchange for payment of £10
per hour. I am satisfied that this
basic contract remained in force until SJ terminated it on 9 February 2018.
35. I therefore find that the first limb of the Article
1A(3) Employee test is satisfied.
Was there a requirement for personal performance/personal
36. Having established that there was a contract between
the parties, I then considered (based on the conduct of the parties over the
course of the contract) whether there was an express or implied right of
37. On the evidence it was clear that there was no express
or implied right of substitution in line with the principles set out in Pimlico
Plumbers; at no stage did the Claimant offer to provide a substitute
gardener when he was either on holiday or ill and SJ expected the Claimant to
personally undertake the gardening work.
38. I therefore find that the second limb of the 1A(3)
Employee test is satisfied.
What was the nature of the relationship between the
Claimant and the Respondents?
39. Finally, I considered the question of whether or not
the Respondents were ‘customers’ of the Claimant.
40. In considering this question, I noted in particular
the following points:
a) The Claimant commercially advertised his services; he
placed regular advertisements in the JEP and was free to market his services to
the world in general. Unlike in Bates
van Winkelhof, the Claimant was free to work for as many other people as he
wished. The Respondents did not
require (or expect) exclusivity and, when the Claimant needed more work, he
simply re-advertised in the JEP.
b) The Claimant enjoyed flexibility in his work. Although SJ indicated to him that she
would prefer that he worked in the mornings, I accepted that SJ was happy for
the Claimant to work on any morning; it just so happened that the Claimant
chose to come regularly on a Friday.
c) There were no adverse consequences if the Claimant
informed SJ at short notice that he would not be attending that day; I accepted
SJ’s evidence that the money would simply stay until the Claimant did
d) The Claimant was free to take holiday whenever it
suited him; he simply informed SJ that he was going on holiday or was unable to
e) The Claimant paid his own tax.
41. In light of Bates van Winkelhof, in reaching my
decision I considered it particularly relevant that the Claimant was able to source
his own work through the placing of an advertisement in the JEP. Unlike in Bates van Winkelhof,
the Claimant was not constrained in his ability to work for others; the fact
that he advertised his services demonstrates that he had an unfettered ability
to provide gardening services to new customers notwithstanding that he already
provided gardening services to the Respondents.
42. In view of the above, I concluded that the Claimant carried
on a business undertaking on his own account. The Respondents were his
'customers' and he provided them with a gardening service. The fact that the contract continued
over a prolonged period does not magically turn the Claimant’s employment
status from self-employed to that of a 1A(3) Employee. During the entire time that he undertook
work for the Respondents, the Claimant continued to advertise for new work when
necessary and the fact that he enjoyed a long-term source of work from the
Respondents is evidence only of his abilities as a gardener.
43. I therefore find that the third limb of the 1A(3)
Employee test is not satisfied.
44. Consequently, the Claimant was not an employee under
the provisions of Article 1A EJL 2003.
The Claimant was a self-employed person who was carrying on a business
undertaking on his own account.
Claimant is therefore not entitled to pursue the Claims in the Tribunal
The Claims are HEREBY STUCK OUT.
Mrs H G Griffin, Chairman