Mr Chris Townsend v Bikeworks CIC: 3200159/2020
The judgment of the Tribunal is that the Claimant was neither an employee of, nor a worker for, the Respondent, as defined by s.230 Employment Rights Act 1996, but in fact a self-employed independent contractor. Accordingly, all the Claimant’s complaints are struck out, and his claim is dismissed.
This case was a preliminary hearing to determine whether the claimant, Mr Townsend, was an employee or worker of Bikeworks CIC under s.230 Employment Rights Act 1996.
Townsend is a qualified cycle instructor/mechanic and worked for Bikeworks CIC firstly in 2016 and then, after a break, in 2019. Townsend worked as self-employed for Bikeworks CIC and in January 2020 claimed constructive dismissal and he stated it was: “…in direct response to an attempt to access my rights within the workplace”.
In 2016, Townsend had been given a cycle instructor policy, the child protection and vulnerable adult policies, and what Townsend describes as ‘a self-employment document’. When he rejoined in 2019, he did not re-sign any paperwork, rather there was just an exchange of emails.
Townsend was told that he would be covered whilst working by the Bikework’s public liability insurance, which he considers to be consistent with his being a member of their staff; and that he would be integrated into the Bikework’s website and booking platform. Although Townsend was completely free to set his working and break hours or periods, the reality was that the Bikework’s expected their instructors to undertake mandatory tasks outside their set hours.
Contracts
Other than the self-employed document that was signed by Townsend in 2016, no documents had been provided or signed, for the 2019 term. There was a simple exchange of emails which was a record of the agreement between the parties.
Mutuality of obligations
The judge considered that there was no mutuality of obligations in the parties relationship in 2019. There was also no irreducible minimum of obligation, either express or implied, on each party whereby a contract of employment might then have existed.
“The simple fact is that the Respondent did not have to provide the Claimant with any work at all by way of training sessions; but that if it chose to do so, the Claimant was not bound to accept and perform any or all of the sessions so offered, and could refuse any or all of them without penalty or sanction. It suited the Respondent for the Claimant to join its team of freelance cycle instructors, which is why he was approached in June 2019; conversely, it suited the Claimant to be able to undertake training sessions for the Respondent as one of a number of training providers for whom he could work when convenient to himself.”
Employment Judge Barraclough
The lack of mutual obligations was also reflected in the self-employed document and the emails to Townsend in June 2019. This was also in Townsend’s repeated references to his being a ‘freelancer’. Nor was there any evidence to suggest the existence of mutual obligations between the sessions which the Claimant did actually work.
The judge stated that the lack of mutuality on its own was enough to determine that there was no contract of employment. He continued, however, to consider the issue of control in case the lack of mutuality was not sufficient.
Control
Townsend had the power to decide when he worked and to decide not to undertake a session, often at short notice, without penalty or sanction. On that basis, the judge decided that Bikeworks did not have sufficient control over Townsend to make him an employee.
Worker
The Employment Tribunal also considered whether Townsend was a ‘worker’ within s.230 (3)(b) Employment Rights Act 1996. Again the judge decided that Townsend “falls squarely into the category of a contractor with only a limited, if any, degree of dependency on [Bikeworks]…”
Conclusion
This is another case where the central issue has been mutuality of obligations. Although it is not binding because it is an employment tribunal, it is interesting to note that the judge focused on the lack of mutuality both during the time when Townsend did work and also, when he didn’t work. Also, pointing out that he could drop a shift with little or no notice and not be penalised. This is an interesting juxtaposition on the substitution issue.
https://www.gov.uk/employment-tribunal-decisions/mr-chris-townsend-v-bikeworks-cic-3200159-2020
Published: 27 November 2020