Dr Mark Ter-Berg -v- Simply Smile Manor House Ltd and Others [2023] EAT 2
| Jurisdiction | UK Non-devolved |
| Judge | Judge Auerbach |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 01 February 2023 |
Judgment approved by the court Ter-Berg v Simply Smile Manor House & Others
© EAT 2023 Page 1 [2023] EAT 2
Neutral Citation Number: [2023] EAT 2
Case No: EA-2020-000574-OO
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 4 October 2022
Before :
HIS HONOUR JUDGE AUERBACH
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Between :
DR MARK TER-BERG Appellant
- and -
(1) SIMPLY SMILE MANOR HOUSE LTD
(2) NHS ENGLAND MIDLANDS AND EAST
(3) MR PARUL MALDE
(4) DR COLIN HANCOCK
Respondents
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Kevin McNerney (instructed by Leathes Prior Solicitors) for the Appellant
Stephen Butler for the Third and Fourth Respondents
Hearing date: 4 October 2022
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JUDGMENT
Judgment approved by the court Ter-Berg v Simply Smile Manor House & Others
© EAT 2023 Page 2 [2023] EAT 2
SUMMARY
EMPLOYEE, WORKER OR SELF-EMPLOYED
When deciding whether a claimant was an employee, a worker, or neither, and determining, for that
purpose, whether the terms of a document relied upon as a written contract reflect what the parties in
reality agreed, the employment tribunal should follow the approach set out in Autoclenz v Belcher,
including not applying certain rules of contract law that would apply when considering other types of
written contract. That approach is confirmed by the decision of the Supreme Court in Uber BV v
Aslam, which provides further guidance as to the policy considerations underpinning it, which should
be borne in mind when applying it. Provided that, in such a case, the tribunal does apply that
approach, it is not necessarily an error for it, when explaining its reasons, to start with a consideration
of the terms of any document said to amount to such a written contract. But it will be an error for the
tribunal, in such a case, to confine its consideration to such terms, to treat them as conclusive, or to
treat them as giving rise to a presumption which restricts what it might conclude from its consideration
of all the facts and circumstances in accordance with the Autoclenz/Uber approach.
In relation to clauses to the effect that a written agreement is not intended to create a relationship of
employment or a worker relationship:
(a) As held by the Supreme Court in Uber, such a clause will be void and ineffective if, upon
objective consideration of the facts, the tribunal finds that it has as its object the excluding or
limiting of the operation of the legislation in question (pursuant to section 203(1)
Employment Rights Act 1996 or the equivalent provisions of other legislation);
(b) In any event, if, apart from such a clause, the other facts found by the tribunal point to the
conclusion, applying the law to those facts, that the relationship is one of employment or a
worker relationship, such a clause cannot affect that legal conclusion; but
(c) If neither (a) nor (b) applies, then, in a marginal case, in which the tribunal finds the clause to
be a reflection of the genuine intentions of the parties, it may be taken into account as part of
the overall factual matrix when determining the correct legal characterisation of the
relationship.
Judgment approved by the court Ter-Berg v Simply Smile Manor House & Others
© EAT 2023 Page 3 [2023] EAT 2
HIS HONOUR JUDGE AUERBACH:
Introduction
1. The claimant in the employment tribunal claimed that he was unfairly dismissed by the first
respondent for the reason or principal reason that he had made a protected disclosure, and that the
third and fourth respondents, who were both directors of the first respondent, were co-liable in that
respect. In a reserved decision following a hearing in Cambridge before Employment Judge Ord the
tribunal determined that the claimant was not an employee of the first respondent and so it dismissed
his unfair dismissal claim. This is the claimant’s appeal against that decision.
2. I will refer to the parties as they are in the employment tribunal. The first respondent is, I am
told, now in voluntary liquidation and has not participated in today’s hearing. Nor has the second
respondent, although its solicitor, Ms Heinz, attended today. She told me that she was not seeking to
be heard and her client stands neutral on this appeal. It is fair to note that its overarching position is
that there is no proper basis for it to have been made a party to the employment tribunal proceedings
at all, but that is an issue that the tribunal has yet to determine. As before the employment tribunal,
the claimant has been represented today by Mr McNerney and the third and fourth respondents by Mr
Butler, both of counsel, Mr Butler also having represented the first respondent before the tribunal.
3. The tribunal identified at the start that the hearing had been listed solely to determine whether
the claimant was an employee of the first respondent. It declined a request from Mr McNerney to
consider at the same hearing whether he was, in the alternative, a worker.
The Employment Tribunal’s Decision
4. The tribunal began its findings of fact by setting out that until 1 April 2013 the claimant, who
is a dentist, was the principal of a group of three dental practices. He sold the business comprising
those practices to the first respondent with effect from that date. Upon the first respondent’s
acquisition of the business, the claimant and the first respondent entered into a contract headed
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