Employment tribunals must carefully distinguish between the legal tests for Worker status and Employee status. The Employment Appeal Tribunal (EAT) has ruled that a tribunal erred in several respects when determining whether an individual, previously found not to be an Employee, was a Worker.
In this case, the Claimant, a dentist, had sold his dental practice to Simply Smile Manor House Ltd and subsequently entered into an agreement to provide dental services at specified premises. The agreement explicitly stated that it did not create an employment relationship. The Claimant later brought claims against Simply Smile and its directors, asserting that he had been an Employee or, alternatively, a Worker. After Simply Smile was dissolved, only the individual Respondents remained in the case.
At a preliminary hearing, the tribunal determined that the Claimant was not an Employee, finding that none of the “irreducible minimum” requirements for an employment contract were met. The Claimant unsuccessfully appealed this decision. The tribunal then considered his Worker status at a separate hearing and concluded that he was not a Worker either, reasoning that a finding of Worker status would be inconsistent with its earlier decision on Employee status. The tribunal held that the requirement for personal service was not met and that the parties’ intention had always been that the Claimant was self-employed.
The EAT overturned this decision, holding that the tribunal had erred in its approach. It criticised the tribunal for handling the questions of Employee and Worker status separately when they should have been considered together due to their overlapping legal tests and evidential requirements. The tribunal had also wrongly concluded that it was bound by its previous findings on Employee status when assessing Worker status. The EAT emphasised that Worker status has a “lower pass mark” than Employee status, meaning that a lack of sufficient control to establish an employment relationship does not automatically preclude Worker status. The tribunal’s conclusion that personal service was not required was also flawed, as it had misinterpreted the substitution clause in the Claimant’s contract.
The EAT further found that the tribunal had placed undue weight on the parties’ intention regarding Employee status. The fact that the contract ruled out employment did not mean the Claimant could not be a Worker. There was no evidence that the parties had explicitly considered or rejected Worker status. References to the Claimant being “self-employed” were ambiguous and should not have been treated as determinative.
The case was remitted to a fresh tribunal. The EAT’s decision reinforces the importance of distinguishing between the legal tests for Employee and Worker status and highlights that tribunals should not automatically transfer conclusions from one test to the other. It also serves as a reminder that, where both Employee and Worker status are in dispute, they should generally be determined in the same hearing.
Case
Dr Mark Ter-Berg v 1) Mr Parul Malde 2) Dr Colin Hancock: [2025] EAT 23.
