Caselaw for IIDB

CPAG handbook2018/19 page 960 refers to two of the attached cases for definition of employed and self employed.

Ready mixed cement may be the one to start off with.

Thank you very much. I wouldn’t have thought of looking there.

Sorry didn’t see this yesterday

Ready Mixed Concrete is the lead case (also on bailii https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/1967/3.html&query;=(title:(+ready+))+AND+(title:(+mixed+))+AND+(title:(+concrete+)))

it’s all about control.  which is why most labour only subcontractors, who have no control at all over the work they do, where they do it etc etc etc, are treated as employees not only for EL insurance purposes but for other purposes also.

much more recently, there’s Pimlico Plumbers: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2017/51.html&query;=(“ready+mixed+concrete”)

there are few other cases as well, and i found a UT IIDB case which refers to people being “treated as” an employed earner - CI 7507 - 1999 (about a former RAF technician)

The Pimlico Plumbers care isn’t of assistance here because it was about employment status in employment law and specifically whether they were a “worker”. This is rather different to employment status in tax/social security law where the status of “worker” does not exist.

Jeremy Barker - 28 September 2018 10:50 AM

The Pimlico Plumbers care isn’t of assistance here because it was about employment status in employment law and specifically whether they were a “worker”. This is rather different to employment status in tax/social security law where the status of “worker” does not exist.

yes but persuasive and assists on the control point.

the issue of who is an is not an employed earner, and should be treated as an employed earner, comes up in many areas and the answer is usually pretty much the same.

cases in one field on a point are regularly prayed in aid in another field where the same point is under discussion

This is an awfully complex question which we probably spent two months on at Uni..

An “employed earner” for IIDB purposes is generally someone operating under a “contract of service” which is a fancy way of saying an “employee”. That is the same question as was being asked in Ready Mixed Concrete which is still usually regarded as the leading case. Ready Mixed Concrete is 50 years old, so there have been a few twists and turns since then. Autoclenz v Belcher [2011] UKSC 41 usefully summarises.

What is not important in this context is whether someone is a “worker”. This is a separate test and It is possible to be a “worker” but not an “employee” - Mr Smith in the Pimlico Plumbers case being a good example. An accident arising in this context would not allow a claim for IIDB.

This is an important distinction because merely being under the direction or control of another in the course of providing services for remuneration might be sufficient to make you a “worker” but will not of itself make you an “employee”. In Pimlico, the claimant was not an employee because he had a choice about what work he did - there was no “mutuality of obligations” because he could just refuse work which was offered to him (as an employee, I can’t just decide not to show up to work one day. Equally, my employer has to offer me enough work to fulfill my contract and I can’t just be sent home one day without pay if we don’t have any clients to see). In Belcher, the issue was that there was a term in the contract which allowed for someone else to substitute for the “subcontractor” so there was no requirement of personal service (as an employee, I can’t just ask my mate to do my job for me if I don’t fancy it - the employer has a right to insist that I do the work myself). Albeit, in that case the clause in the written contract was found to be a “sham” and did not reflect the reality of the work.

But honestly, I don’t think that picking apart caselaw at this point is really a productive way to go about advising this client. It’s a matter of common sense more than anything. Ask him - what about his relationship with this firm makes him think it was “employment” rather than “self-employment”? Why does he think it was “sham” self-employment? How was it similar or dissimilar to his or your own experiences as an employee? If he has a contract, does he accept that it reflects the actual reality of his work or are there things which were different in practice?

If there is some “meat” to it, then maybe it is worth pursuing. DMG 66068 says this is a matter which should be formally decided by HMRC - although I don’t know the legislative reference of that and frankly it is is not something I’ve ever had to look into.

you’re right about it being complex ....

generally speaking, however, labour only subcontractors in building and similar trades (or even in non heavy work, depending on the facts) who have no responsibility at all for health and safety in the workplace, no separate liability insurance of their own or obligation to have nay, etc etc etc, will be classed as employed earners.

oftentimes, the employer calls people self employed because it saves the employer money (no payroll, no employer’s NICS) reduces his need for and so the premium for EL insurance (assuming his insurer accepts what he’s saying a whole other ball game if insurer doing its job) and means the pseudo employee has no employment rights.  and Pimlico Plumbers was about employment rights if nothing else.

none of that means that for IIDB purposes they can’t get it.

tis all about the facts…..