Manning v Walker Crips Investment Management Ltd

Held, allowing the appeal, (1) that, while the courts had sought, where there was a significant imbalance of power between contracting parties, to ensure that contractual powers were not abused by implying a term as to the manner in which they might be exercised, in the present case the implied term was being relied on by the respondent, not to protect the putative worker or employee against abuse of power in an unequal relationship, but to take the individual outside the scope of the statutory rights which protected against the imbalance of power; that clause 2.5 was effective and of value to the respondent without the term implied by the employment judge, and it was not necessary to imply such a term to give the clause business efficacy; that, further, while the fact that a substitution clause had never been exercised or used did not automatically mean it was not genuine, the failure to follow the process required by clause 2.5 on any single occasion was, at least, a highly relevant factor to which the employment judge should have had regard in deciding whether the facts, viewed realistically, meant that clause 2.5 gave the claimant a right never to do any work; and that the employment judge had erred in implying the term into clause 2.5, with the consequence that the respondent had an unqualified discretion to withhold its consent to substitution and the claimant owed an obligation of personal performance (post, paras 48, 52, 58, 59, 61, 69, 71).

Uber BV v Aslam [2021] ICR 657, SC(E) considered.

Braganza v BP Shipping Ltd [2015] ICR 449, SC(E) distinguished.

(2) That the business undertaking exclusion in the definition of “worker” in section 230(3)(b) of the Employment Rights Act 1996 and regulation 2 of the Working Time Regulations 1998 was not co-extensive with those who were self-employed or carrying on business on their own account, and it was now established that a “limb (b)” worker was a sub-category of the self-employed; that it was not, therefore, appropriate to give any weight to the parties’ characterisation of their relationship based on the claimant being self-employed; that clause 11 itself did not purport to exclude worker status or suggest that the respondent was a client or customer of the claimant’s business undertaking, its most obvious purpose being to distinguish associates, such as the claimant, from those investment managers who were direct employees, and the reference to “independent contractor” had to be read in that context; that either the facts, viewed realistically, showed that the claimant was a worker within the terms of the statutory definition or they did not, and clause 11 was neutral on that question and had no weight; and that, accordingly, the employment judge had misdirected herself in attributing weight to the parties’ characterisation of their relationship when finding that the respondent was a client or customer of a business undertaking carried on by the claimant (post, paras 93, 96, 98, 101, 105, 106, 125).

Hospital Medical Group Ltd v Westwood [2013] ICR 415, CA applied.

Byrne Bros (Formwork) Ltd v Baird [2002] ICR 667, EAT considered.

Autoclenz Ltd v Belcher [2011] ICR 1157, SC(E) and Uber BV v Aslam [2021] ICR 657, SC(E) distinguished.

(3) That, in trading in his personal investments during business hours, the claimant was not conducting or carrying on part of a business undertaking; that he was not acting for anyone else, nor providing a service to any client or customer, but was doing exactly what directly-employed investment managers were doing, namely, conducting trades for their personal benefit, and that did not support a conclusion that the respondent was a client or customer of a larger business undertaking carried on by the claimant; and that, accordingly, the finding on personal service would be set aside and a finding that the claimant did undertake to perform personally work or services for the respondent substituted and the question of whether the respondent was a client or customer of a business undertaking carried on by the claimant would be remitted to the employment judge for redetermination (post, paras 119, 125, 126, 128).

Wolstenholme v Post Office Ltd [2003] ICR 546, EAT distinguished.