Assisting a client in successfully defending an Employment Tribunal claim

David Dixey, specialist employment lawyer for Holmes & Hills, was instructed by the client company, a construction contractor, who had been served Employment Tribunal proceedings and required urgent advice and assistance in order to initially protect their position in the proceedings and ultimately successfully defend the claim.

The Claimant asserted that he had been an employee of the client company and brought a claim for damages in respect of alleged unfair dismissal and statutory redundancy pay.

An unusual dispute

However, this was no ordinary employee / employer dispute; the client company maintained that for a number of years the Claimant had provided services as an independent self-employed contractor and not as an employee of the company. The main facts surrounding the dispute were:

1. There was no written agreement between the parties whether in the form of an Employment Contract or a Consultancy Agreement;
2. In day to day communications between each other the Claimant and the company often used terms that are usually indicative of employment status, such as for example “resignation, notice, verbal warning and CV”;
3. The Claimant raised invoices in respect of the services provided to the client company.

On receipt of instructions, David DIxey urgently advised the client regarding the issues arising, namely Employment Tribunal procedure (importance of filing a Response in a timely manner), employment status and the steps necessary to properly defend the proceedings, whilst approaching the Claimant seeking their discontinuance of the claim.

Presenting evidence to the claimant

We prepared and filed detailed Grounds of Resistance on behalf of the client company. Evidence was then presented to the Claimant suggesting his claim was wholly misconceived, that the client company would likely successfully defend the claim and, because the claim was considered so weak, possibly also obtain an order for costs in the Tribunal.

The Claimant subsequently withdrew his claim at an early stage long before the listing of any final Hearing.

Issues arising in this case included:

1. The importance of determining at the outset (and evidencing the same) the legal relationship between an independent consultant and the client retaining their services, thus minimising any suggestion of employment status;
2. The importance of signing a formal written Consultancy Agreement;
3. In communications with the independent contractor or consultant avoiding the use of language that might later be used to infer employee or “worker” status.

Outcome

Holmes & Hills’ early involvement enabled the client company to protect its position within the proceedings and file an appropriate Response within the applicable Tribunal time limits. We then assisted the client in successfully persuading the Claimant to withdraw proceedings at an early stage.