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Employment Tribunal Update: Do any of our competitors pass the ‘Ronseal Test’?

Ian Anfield | 14th January 2014

Having spent the past six years writing about my own Employment Tribunal experiences, it’s a welcome change this month to be able to tell you about someone else’s.

But before we come to that, I have to say it always surprises me that in fact, we hardly ever hear about any of our competitors being taken to Tribunal. When you consider that Hudson Contract has formally responded to over 100 claims for inferred or worker rights, you’d have thought that by the law of averages, other firms would also find themselves obliged to defend their contracts.

The anecdotal evidence suggests a lot of these cases are simply paid off – and if the case I read about recently is anything to go by, I can see why this is the best course of action.

The case involved Mr Bragg, a scaffolder, who took a company called Boss Projects to Tribunal.

On the face of it, Boss Projects offer a similar service to Hudson Contract, but keep reading…

Mr Bragg had already won his case for holiday pay, and Boss Projects – in fairness – decided to appeal the verdict at the Employment Appeals Tribunal.

But once again, Mr Bragg was successful, and the Honourable Mr Justice Mitting dismissed the appeal, ruling: “Boss, having chosen to argue the case on the basis only of the watertight drafting of its own written contract, in circumstances in which they knew that the law was likely to look elsewhere to discern the true nature of the relationship, cannot now complain when that defence proved flimsy.”

To put it in more colloquial language, anyone can write a contract saying anything. But whether that contract does its job can only be proven when somebody challenges it. In this case Boss Projects’ contract did not pass the ‘Ronseal Test’, because it certainly did not do what it said on the tin, and the Appeals Tribunal decided Mr Bragg was not genuinely self-employed.

A costly error

Whatever Boss Projects’ motivation for taking this case to appeal, it could prove to be a very costly mistake for them.

When and if future cases are brought against them – or their clients – this judgement is likely to be brought up, and the Tribunal would be asked to consider it confirms people contracted to Boss are workers as opposed to freelancers.

Although Hudson Contract have never been on the wrong end of a judgement (and in two of our last three victories we were awarded costs), I hope it comes across that Employment Tribunals are never easy. The language, logic and etiquette surrounding hearings can be incredibly frustrating, and often seems bizarre to clients who give up their time to appear as witnesses.

I can not stress too highly that prevention is better than cure, and that is why we thank our clients for following our procedures and contributing to our audits.

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