Self-Employed Or Employee – Supreme Court Decision

The Supreme Court has today handed down their decision in the case of Autoclenz Limited v Belcher. This case will be of particular interest for those organisations that employ self-employed subcontractors.In this case, Autoclenz employed Mr Belcher (amongst others) as what they said were self-employed car valets.

Autoclenz required the valets to sign an agreement confirming that they remained self-employed; and the agreement contained provision for a substitute to be provided.  Mr Belcher and his colleagues brought a claim alleging that they were, in fact, employeers and/or ‘workers’ and that they were therefore entitled to, amongst other things, the National Minmium Wage.

The question mark in this case was whether or not the Court should focus simply on the contractual documents; or look at the actual reality of the situation. The Supreme Court decided that in relation to a potential employment situation, an Employment Tribunal ought to look at the actual situation ‘on the ground’ in determining whether or not someone is actually an employee or a self-employed subcontractor. This means that the question (which arises regularly) as to whether a person is self-employed or an employee/worker will be judged as a matter of fact on the individual case as it stands.

It is no longer necessary for an individual to prove that the contractual agreement was a ‘sham’, as had been implied by a recent Court of Appeal decision. This is a very important development, and will be of particular interest to those businesses that do employ self-employed subcontractors. In that case then I would suggest that any employer in that position reviews their arrangements with such individuals as soon as possible in order to properly protect their business.

At Forbes Solicitors, our Employment lawyers for your business regularly tackle these issues both at an internal stage and in Tribunal when necessary.  As with any employment issue, ensuring you have robust policies and procedures in place will give employers the best possible chance of avoiding a dispute.

Jonathan Holden

About Jonathan Holden

Jonathan is a Partner and Head of the Employment Law department at Forbes Solicitors. Jonathan’s blogs cover his specialisms of disciplinary and grievance matters, redundancies, restructures, employment contracts, TUPE, policies and procedures and settlement agreements. Jonathan also writes about and acts for clients in relation to Employment Tribunal claims for unfair dismissal and discrimination.
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