A solicitor who worked as a consultant for a South London law firm was not an employee and so could not sue for unfair dismissal and breach of contract, an employment tribunal has ruled.
Employment Judge Fowell held that criminal defence solicitor Ventis Brown met the test for beinga worker, however.
The judge was ruling on the preliminary issue of Mr Brown’s employment status while working at Wainwright & Cummins, where he was a self-employed consultant, invoicing at the end of each month for an agreed percentage of the fees he generated.
“In practice he operated very independently,” the judge said. “He did not work from the firm’s premises and provided his own laptop and other equipment.
“The work which he picked up at court or at the police station was his to progress and it was open to him to instruct external counsel for a hearing, which is what he usually did, rather than use the firm’s in-house advocates.
“If the case went on to the magistrates’ court, he would be asked if he wanted to conduct the litigation. It was up to him.”
Mr Brown was under the supervision of a partner at the firm, “but she found it very difficult even to arrange a meeting with him”.
“He had some further involvement with the firm. When they were audited he was required to make himself available to speak to the auditors, and he was routinely invited to office parties and other social events. He was on the firm’s organisational chart as a fee-earner, and on their website.”
Judge Fowell said Mr Brown was to be paid on a case-by-case basis and his contract specifically provided that he would not be regarded as an employee.
“In those circumstances there is little more to be said. This is not a situation which the contract in question is a sham, or where working arrangements in practice differed from the ostensible written agreement.”
Worker status requires a contract to provide services personally for remuneration. While the contract placed no obligation on the firm to provide work or on him to accept it, this was inconsistent with the reality of the obligation under Legal Aid Agency rules to do at least 14 hours per week of legally aided work to retain his place on the duty solicitor rota.
“It also fails to reflect the supervision and reporting requirements. I cannot therefore construe this as a genuinely casual arrangement. There is also, I note, a fixed monthly retainer of £1,000.”
Despite the solicitor’s independence, the judge went on: “A finding that he was genuinely self-employed would mean that if, for example, during a supervision meeting, he was subject to racial comments or sexual harassment, he would have no right to protection.
“Although there is a danger in working backwards from the right in question to work out the status of the individual, it would be a strange conclusion that in those circumstances someone in his position, who appeared on the firm’s website and was required to be present for these supervisions, was not protected from discrimination.”
Judge Fowell concluded that Mr Brown was clearly not an employee and, “although he was far from being at risk of exploitation by the firm, there was no real right to provided a substitute, and the circumstances are not sufficiently distant to avoid the conclusion that he was a worker, and hence by extension entitled to protection under the Equality Act 2010”.
That meant the claims of unfair dismissal and of breach of contract, which depended on employee status, were dismissed, leaving the tribunal to proceed with Mr Brown’s other, unspecified, claims.