You can be your own boss and still be classed as a worker

1st September, 2022

The case of Mr Catt v English Table Tennis Association & Others serves a reminder that you can be your own boss and potentially still be classed as a worker.

Workers have rights to holiday pay, sick pay, pension benefits and, more pertinently in this case, they have significant employment protection and can bring certain claims at the Employment Tribunal.

The Background

The Claimant here was a Mr Catt, a non-executive director of the English Table Tennis Association. He brought a claim that he suffered detriments as a result of making 27 protected disclosures under section 47B of the Employment Rights Act 1997. To bring this claim, he must be classed as a “worker”. It was common ground that he was not an employee.

The Table Tennis Association said he was not a worker – he was free to decline invitations to training courses and there was a lack of management control. They argued this was not comparable to the landmark Uber v Aslam case, where the Supreme Court found the claimant Uber drivers were, in fact, workers.

Earlier this Summer, the Watford Employment Tribunal (“ET”) held that Mr Catt was not a worker. According to the ET, his lack of dependence and vulnerability towards the Table Tennis Association was crucial to this conclusion.

Mr Catt appealed to the Employment Appeal Tribunal (“EAT”).

The EAT upheld the appeal against the ET’s decision on worker status.

What is the statutory definition of “worker”?

The statutory definition of “worker” has three elements:

A contract whereby an individual undertakes to perform work or services for the other party;
An undertaking to do the work or perform the services personally;
A requirement that the other party to the contract is not a client or customer of any profession or business undertaking carried on by the individual.

The decision

In this case, it was accepted that the second and third elements of the test were satisfied. Mr Catt was required to give personal service and the Table Tennis Association was not his client or customer.

The central question on appeal was about whether Mr Catt met the first element of the worker definition. Here, the EAT said, the question about whether he had been working pursuant to a contract with the Association had not been safely answered by the ET. Too much focus had been placed on whether Mr Catt was in a position of subordination, vulnerability and dependence.

In effect, the EAT held that whether the first element of the test had been met could not readily be answered by drawing comparisons with other Employment Tribunal cases which arose out of an entirely different context such as the Uber case.

Significantly, here, there was documentation describing Mr Catt’s role as having to provide a certain time commitment and an expectation he attend board meetings and other events which could otherwise lead to him being kicked off the Board. The EAT said those are all matters that might be taken to point towards the necessary contractual relationship and had not been engaged with. It is a fact sensitive question which will now be determined afresh by a different ET.

There are various tests employed to determine whether an individual is (or is not) a worker which sometimes help in applying the statutory test. These include looking at how integrated an individual is in an organisation, the amount of control (if any) they have over their working conditions and remuneration and whether there is a relationship of subordination. Whilst one test may be determinative in distinguishing a worker from other self-employed people in one case, it may not be in another. Context is important.

If you have any questions about this case, please get in touch with Sophie Smith, or any of our expert Employment lawyers.