Key Facts
- •The claimant and his wife operated a pre-existing partnership, Webb Consultants.
- •The claimant provided services to the respondent as an Area Sales Leader through the partnership.
- •Payment for services was made to the partnership.
- •The respondent applied to strike out the claimant's unfair dismissal claim, arguing he was not an employee.
- •The ET refused the application.
- •The respondent appealed to the EAT.
Legal Principles
Unfair dismissal requires employee status under section 230(1) Employment Rights Act 1996 (ERA).
Employment Rights Act 1996, section 230(1)
Determining employee status involves a multi-factorial test considering mutuality of obligation and control.
Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] QB 497, Hall v Lorimer [1992] ICR 739, Revenue and Customs Commissioners v Atholl House Productions Ltd [2022] EWCA Civ 501
The 'true agreement' between parties should be considered, looking beyond written terms if necessary.
Autoclenz v Belcher [2011] ICR 1157, Uber BV and ors v Aslam and ors [2021] UKSC 5
A contract with a partnership does not preclude the possibility of an individual partner being an employee, but the specific facts are crucial.
Catamaran Cruisers Ltd v Williams [1994] IRLR 386, Firthglow Ltd v Descombes and anor UKEAT/0916/03, Protectacoat Firthglow Ltd v Szilagyi [2009] EWCA Civ 9
A partner acting for a partnership binds all partners unless lacking authority and the other party knows this (Partnership Act 1890, sections 5 & 6).
Partnership Act 1890, sections 5 & 6
The EAT generally follows its previous decisions unless there are specific exceptions.
British Gas Trading v Lock [2016] ICR 503
Outcomes
The EAT allowed the respondent's appeal.
The ET erred in distinguishing Firthglow Ltd v Descombes. The contract was between the respondent and the partnership, precluding individual employee status for the claimant.
The ET's judgment was set aside.
The claimant's claim had no reasonable prospect of success because the contract was with the partnership, not individually with the claimant.