Written Terms Are Relevant to Employment Status Disputes
The Employment Appeal Tribunal (EAT) has offered guidance on how to interpret the Supreme Court judgment in a recent case, in the context of an employment status dispute.
What Were the Facts of the Case?
In Uber BV v Aslam and others [2021] the case of Dr Ter-Berg was a dentist who worked under a standard British Dental Association agreement under which he had to provide dental services at specified places. The agreement stated it was not an employment contract. It contained a substitution clause requiring Dr Ter-Berg to provide a locum to cover any absence of 20 days or more.
Dr Ter-Berg brought an Employment Tribunal claim for automatic unfair dismissal, alleging he had been unfairly dismissed because he had made a protected disclosure. The facts of Dr Ter-Berg's alleged disclosure and the subsequent termination of the agreement were beyond the scope of this EAT judgment.
What Did the Tribunal Decide?
In order to be able to bring his Employment Tribunal claims, Dr Ter-Berg needed to show he was an employee at the relevant time. He accepted that he was initially engaged as a self-employed contractor. However he argued that the nature of the relationship had changed over time so that he ended up being an employee.
The Employment Tribunal disagreed. It found that Dr Ter-Berg was not an employee, because it said that none of the elements of an employment contract were present.
What Was the EAT's Decision?
Dr Ter-Berg appealed to the EAT, which has allowed the appeal in part. The EAT disagreed with the Tribunal's interpretation of the substitution clause. It has remitted the case to a new Tribunal on that basis. However, the EAT remarked that it was acceptable for the Tribunal to start its analysis by looking at the agreement between Dr Ter-Berg and the practice. In the Uber case, the Supreme Court had said that the question of whether an individual is a worker will turn on the statutory definition of worker rather than on what is written in the contract. The EAT has now confirmed that this does not mean that the Tribunal cannot use a contract as a starting point in its analysis. The key factor will be to ensure that the Tribunal does not limit its analysis to a review of the contractual terms.
What Can Employers Learn from this Decision?
Following the Supreme Court's judgment in the Uber case, there has been renewed focus on statutory definitions in employment status disputes. It is necessary to look beyond the contract to the reality of the working relationship and the statutory framework in order to determine employment status. However, this case serves as a useful reminder that the terms of a written contract will continue to be relevant. Care should be taken to keep contracts up to date, particularly in the event of a change in status over time.