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Case note: Jersey Employment and Discrimination Tribunal Judgment on employment status, Carey v JP Mauger Limited [2020] TRE 209

In the world of employment, the words “employment status” relate to the question of whether a person is an employee, as defined by the Employment (Jersey) Law 2003 (Employment Law), or a self-employed person “in business on his/her own account”. An employee has the protection of the Employment Law, meaning that – among other things – if he/she is dismissed there may be the potential for an unfair dismissal claim. An independent contractor or self-employed person (such as a window cleaner, taxi driver or consultant) has no protection from unfair dismissal. In the Tribunal it is a matter for an individual claiming employment rights to show that he/she is an employee: the burden of proof is on the claimant.

Carey v JP Mauger is a judgment of the Tribunal on employment status. In this case the Claimant had a number of his own companies.  He was a director of those companies and was paid through them for quantity surveyor services he provided to the Respondent. In income tax returns he told the Income Tax Office that he was an employee of one of his companies, while in one such return also describing his status as “self-employed”.

The Tribunal found that the arrangements lacked the requisite mutuality of obligation between the parties for there to be a contract of employment. Further, the arrangements lacked the requisite element of control:

“…the Claimant very much decided when he worked and how much. One of the regular themes in the evidence from the various witnesses was that the Claimant very much danced to his own tune…”

In assessing the position the Tribunal reviewed key Jersey cases on the question of employment status including Bisson v Dore (2016) and Haggar v Salty Dog Bar & Bistro (2012). The Tribunal quoted the following passages from Haggar:

“…modern employment relationships are often not clear cut. It is not surprising to find that many independent contractors for example are subject to stringent controls on their activities by their clients when they are working for them and many employees are subject to little day to day control by their employers. Accordingly the modern approach to determining employment status involves a consideration of all …factors and this is known as the multiple or mixed test.

…It is important that the Tribunal does not adopt a checklist approach to the employment relationship…Instead the Tribunal must, ‘consider all aspects of the relationship, no single one in itself being decisive and each of which may vary in weight and direction, and having given such balance to the factors as seems appropriate, to determine whether the person was carrying on business on his own account’, per Sir John Donaldson MR in O’Kelly and ors v Trusthouse Forte plc 1983 ICR 728.”

Here the crux of the matter was the information provided to Income Tax by the Claimant: the Tribunal noted that at no point had the Claimant told Income Tax that he was an employee of the Respondent.

“…I have little choice but to conclude either that the Claimant was not being entirely truthful with the Comptroller, or that he was not being entirely truthful with the Tribunal…I find it unlikely that an individual as experienced and seemingly as successful as the Claimant would be untruthful or otherwise seek to mislead the Comptroller…I therefore do not accept what he says in his evidence, namely that he entered into an employee/employer relationship with the Respondent…Put another way, it is more likely than not that the Respondent was the “customer” or “client” of the Claimant.”

Accordingly, the Tribunal found in favour of the Respondent.

Advocate Vicky Milner, Employment Partner, Viberts, represented JP Mauger in this case.

Click here for the full judgment.

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