Croke v Hydro Alluminium Worcester Ltd

EAT: Wilkie J, Mr G Lewis and Mr P Smith: 4 April 2007

The claimant, an engineer, formed a company, A Ltd, of which he was sole director. The company entered into a contract with a recruitment consultancy whereby A Ltd, as "the service provider", agreed with the consultancy to provide the services of a consultant named as the claimant. The respondent company asked the consultancy to supply engineers and the claimant provided a CV which the consultancy forwarded to the company. He was interviewed and offered work. By a separate agreement between the consultancy and the company the consultancy agreed to provide the claimant's services with A Ltd named as service provider. When the claimant was dismissed by the company he made a complaint to an employment tribunal that he had suffered a detriment as a result of making a protected disclosure, contrary to section 47B of the Employment Rights Act 1996. On a preliminary issue of law the tribunal found that in the absence of a contract between the company and the claimant himself he was not a "worker" within section 230(3)(b) of the 1996 Act; that the extended definition of "worker" in section 43K(1) applied only to an individual and, had the consultancy provided the claimant as an individual, he would have come within the definition; but that, since the contractual arrangements were with A Ltd the claimant could not avail himself of the protection of section 47B. The tribunal dismissed the claim.

The claimant appealed.

The Employment Appeal Tribunal held:
(1) The tribunal had failed to consider whether, under section 43K(1)(a)(i) of the Employment Rights Act 1996, regardless of whether the recruitment consultancy "supplied" the claimant as an individual or whether it "supplied" A Ltd, it nevertheless "introduced" the claimant to the company as a potential individual to do the work. On the facts, it was the claimant's individual CV, rather than any document from A Ltd offering to provide his services, together with his subsequent interview, that had resulted in the claimant being offered the work. Accordingly, the consultancy did introduce the claimant to do that work within the meaning of section 43K(1) and he was a "worker" for the purposes of section 47B.
(2) Further, where statutory provisions were explicitly for the purpose of providing protection from discrimination or victimisation it was appropriate to construe them as far as possible to provide protection rather than deny it. It was the purpose of section 43K to extend the rights under Part IVA of the 1996 Act beyond the statutory definition of employee provided for by section 230. It was plain, on any realistic view of the facts, that the claimant did work for the respondent company, and, by reference to the realities rather than the strict contractual position, it was the consultancy who "supplied" the claimant to the company to do the work within the meaning of section 43K(1)(a)(i).
(3) As there was no express contract between the claimant and the respondent company under which he performed personally services for the company, he could only be a "worker" within section 230(3)(b) of the Employment Rights Act 1996 on the basis of an implied contract. There had to be some words or conduct which would entitle the tribunal to conclude that the agency arrangements no longer accurately reflected how the work was actually being performed and that the reality of the relationship was only consistent with the implication of a contract, and the tribunal had been entitled on the evidence to conclude that no such contract could be implied.

The appeal was allowed.

Appearances: Simon Devonshire (Wright Hassall, Leamington Spa) for the claimant; John Bowers QC (Clarks Legal, Reading) for the respondent company.