Keppel Seghers UK Ltd v Hinds (Jurisdictional Points : Worker, employee or neither)

Factual and Procedural Background

This case concerns the extended definitions of "worker" and "employer" under section 43K of the Employment Rights Act 1996, specifically in whistle-blowing claims. The appeal was brought by the Respondent against a judgment of the Liverpool Employment Tribunal following a Pre-Hearing Review conducted by Employment Judge Barker on 1 May 2013, with written reasons issued on 8 July 2013.

The preliminary issue before the Tribunal was whether the Claimant qualified as a "worker" under the extended definition in section 43K(1) to bring a detriment claim under section 47B for making a protected disclosure, and if so, who was his "employer" under section 43K(2).

The Claimant is a site-based Health and Safety Adviser engaged as a consultant in the construction and civil engineering industry. He provides his services through his own company, Company A, which he solely owns and operates. The Respondent is a construction company working on a project for a final client, Company B, and engaged the Claimant via an employment agency, Agency A.

The Tribunal received contractual documentation and oral evidence from the Claimant, who was cross-examined. The Respondent did not present witness evidence. The Tribunal found that the Claimant was a worker under section 43K and that the Respondent was his employer for the purposes of that provision.

Legal Issues Presented

1. Whether the Claimant qualifies as a "worker" under the extended definition in section 43K(1)(a) of the Employment Rights Act 1996, specifically whether he was introduced or supplied as an individual by a third party.
2. Whether the Respondent qualifies as the Claimant's "employer" under section 43K(2)(a), meaning the person who substantially determines or determined the terms on which the Claimant was engaged.

Arguments of the Parties

Respondent's Arguments

• The Tribunal erred in concluding that the Claimant, rather than Company A, was introduced or supplied as an individual under section 43K(1)(a)(i) and engaged under section 43K(1)(a)(ii).
• The contractual relationships between the Claimant and Company A, Company A and Agency A, and Agency A and the Respondent governed the supply and engagement, with the Claimant not named personally in the contract between Company A and Agency A, allowing substitution.
• The evidence of the Claimant's interview was insufficient to establish personal introduction, as he would have represented Company A.
• The Tribunal improperly relied on assumptions about parties' intentions rather than contractual terms, contrary to the precedent set in Autoclenz Ltd v Belcher.
• The Tribunal erred in finding that the Respondent determined the Claimant's terms; as sole director of Company A, the Claimant determined his own terms through that entity.
• Contractual provisions expressly limited the Respondent's control over personnel supplied by Agency A and Company A, including the Claimant.
• The Tribunal incorrectly equated practical communication about work arrangements with control, lacking a contractual right of control by the Respondent.
• The Tribunal failed to appreciate the distinction between the tests for "worker" under section 43K(1)(a)(ii) and "employer" under section 43K(2)(a).
• The Tribunal improperly decided the case on policy considerations rather than correct legal application, contrary to Redrow Homes (Yorkshire) Ltd v Wright.

Claimant's Arguments

• The statutory provisions were designed to extend whistle-blowing protection to a wider class of workers and should be construed purposively to provide protection rather than deny it, consistent with Croke v Hydro Aluminium Worcester Ltd.
• The Tribunal's findings were made after a Pre-Hearing Review with the Claimant's evidence unchallenged by the Respondent, and the appeal was effectively a perversity appeal with a high bar for interference.
• The Tribunal correctly applied the statutory test regarding introduction or supply of the Claimant as an individual, supported by evidence including the interview conducted personally with the Claimant.
• The contractual arrangements did not prevent finding that the Claimant was introduced as an individual; even if Company A introduced the Claimant, that still amounted to introduction of the individual.
• The Respondent wrongly limited the enquiry to contractual terms, which is inconsistent with the statutory purpose focusing on practical reality.
• The contract between the Respondent and Agency A specifically referred to the Claimant as the contractor supplied, strengthening the conclusion that the Claimant was supplied as an individual.
• The Tribunal's conclusion that substitution was not contemplated in the supply to the Respondent was supported by evidence and contractual terms.
• The determination of the Claimant's terms must consider what happened in practice, not merely contractual arrangements between the Claimant and Company A.
• The Tribunal's findings on control and determination of terms were supported by evidence of the Respondent's influence over working hours, pay, reporting lines, and termination.
• The Tribunal properly considered the statutory language and did not substitute a control test for the statutory test.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing the statutory purpose of section 43K as an extension to the definitions of "worker" and "employer" specifically for whistle-blowing protections, acknowledging that this extends beyond traditional contractual frameworks.

It accepted that the Claimant's services were provided through Company A in compliance with industry practice but focused on the practical realities of how the Claimant was introduced and supplied to the Respondent. The Tribunal's findings that the Claimant personally was interviewed and assessed, and that the Respondent set the terms of engagement, were held to be permissible and properly supported by evidence.

The court noted that while contractual documents provided a useful starting point, the statutory test under section 43K requires consideration of actual practice rather than solely contractual form. The Tribunal properly considered the contracts but did not lose sight of the practical relationship.

Regarding the determination of terms, the court found no error in the Tribunal's conclusion that the Respondent substantially determined the terms of the Claimant's engagement, based on evidence of the Respondent's control over hours, reporting, pay, and termination. The Tribunal's use of examples was appropriate and did not limit its consideration of all terms.

The court rejected the Respondent's argument that the Tribunal improperly equated communication with control, affirming that control is a relevant factor but must be assessed in context. The Tribunal's approach was consistent with precedent, including White v Troutbeck SA.

The court also dismissed the contention that the Tribunal decided the case on policy grounds rather than law, clarifying that the Tribunal applied the statutory language correctly and considered policy only in the context of the Respondent's submissions.

Holding and Implications

The court DISMISSED THE APPEAL, affirming the Employment Tribunal's findings that the Claimant qualifies as a "worker" under the extended definition in section 43K(1)(a) and that the Respondent is his "employer" under section 43K(2)(a).

The direct effect is that the Claimant retains whistle-blowing protections against the Respondent despite the absence of a direct contractual relationship. The decision reinforces the purposive approach to statutory definitions in whistle-blowing cases, emphasizing practical realities over strict contractual form. No new precedent was established beyond the application of existing principles to the facts of this case.