Mr A Manning v Walker Crips Investment Management Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Michael Ford (Deputy Judge |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 14 June 2023 |
Judgment approved by the court for handing down Manning v Walker Crips
© EAT 2023 Page 1 [2023] EAT 79
Neutral Citation Number: [2023] EAT 79
Case No.: EA-2022-000622-AT
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 14 June 2023
Before :
MICHAEL FORD QC, DEPUTY JUDGE OF THE HIGH COURT
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Between :
MR A MANNING Appellant
- and –
WALKER CRIPS INVESTMENT MANAGEMENT LIMITED Respondent
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Bruce Carr KC and Thomas Cordrey (instructed by Michelmores LLP) for the Appellant
Patrick Halliday (instructed by Charles Russell Speechlys LLP) for the Respondent
Hearing date 30th March 2023
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JUDGMENT
Judgment approved by the court for handing down Manning v Walker Crips
© EAT 2023 Page 2 [2023] EAT 79
SUMMARY
WORKER STATUS
The claimant worked for the respondent as an investment manager between April 2015 and January
2021. Under the terms of his contract, which were negotiated individually with him in some respects,
he could use employees or agents to provide services on his behalf, provided that employee or agent
was approved by the respondent at its “sole discretion” (clause 2.5). The contract also described the
claimant as an “independent contractor” and said it was not to be construed as creating an
employee/employer relationship (clause 11).
At a preliminary hearing, an employment judge (“EJ”) held that the claimant was not a worker for
the purpose of section 230 of the Employment Rights Act 1996 and regulation 2 of the Working
Time Regulations 1998. First, she held that the respondent’s discretion in clause 2.5 of the contract
was subject to an implied term that such consent would not be unreasonably withheld. Although
clause 2.5 had never been exercised in practice, it was a genuine clause and, in light of the implied
term to which it was subject, meant that the claimant owed no obligation to perform any work or
services personally. Second, she held that the respondent was a client or customer of the claimant’s
business undertaking, having regard (among other matters) to the label in clause 11 of the contract
and to the fact the claimant did his own personal business in normal office hours. The claimant
appealed on both grounds.
The claimant’s appeal was allowed in part. First, the EJ had erred in implying a term into the contract
on the basis that such a term was necessary to give clause 2.5 efficacy and not leave it as a thing “writ
in water”. The clause was perfectly workable without such an implied term, the effect of the implied
term in excluding statutory rights ran contrary to the purpose of implying a term to protect against a
potential abuse of power in Braganza v BP Shipping [2015] ICR 449, and it was not necessary to
imply such a term to give clause 2.5 business efficacy or on the basis it went without saying. Second,
in deciding whether clause 2.5 was genuine, the EJ did not have regard to the highly relevant
consideration that it had never been exercised in practice, a factor of especial importance after Uber
BV v Aslam [2021] ICR 657. Third, the EJ should not have given any weight to the fact that clause
11.1 said that the claimant was an independent contractor and was not an employee when it came to
addressing worker status. Fourth, that the claimant did some personal trading in working hours, just
like directly-employed investment managers, did not indicate that he was conducting a business
undertaking for clients or customers other than the respondent (Wolstenholme v Post Office [2003]
ICR 546 considered).
Judgment approved by the court for handing down Manning v Walker Crips
© EAT 2023 Page 3 [2023] EAT 79
Michael Ford KC, Deputy Judge of the High Court
Introduction
1. This is an appeal brought by Mr Manning, who was the claimant before the employment
tribunal (“ET”), against a judgment of Employment Judge Stout (the “EJ”) following a
preliminary hearing on 25 March. In reasons sent to the parties on 29 March 2022, the EJ
decided that Mr Manning was not a worker within the meaning of section 230(3)(b) of the
Employment Rights Act 1996 (“ERA”), and nor was he a worker for the purpose of regulation
2 of the Working Time Regulations 1998 (“WTR”).
2. I shall refer to parties as the Claimant and Respondent, as they were before the ET.
3. The Claimant was represented by Mr Carr KC and Mr Cordrey. The Respondent was
represented by Mr Halliday. Both Mr Cordrey and Mr Halliday appeared before the ET. I am
grateful to all counsel for the high quality of the written and oral submissions.
Background Facts
4. The Claimant worked for the Respondent as an investment manager from 7 April 2015 until
18 January 2021. In a claim form received on 14 May 2021, he claimed that he had been
subject to detriments for making protected disclosures contrary to section 47B of ERA. He
also claimed that he had not been paid in respect of his statutory entitlement to annual leave
due under WTR. In its response, the Respondent denied the claims and also denied that the
Claimant was a worker.
5. The claim was listed for a preliminary hearing on the question whether the Claimant was a
worker within the meaning of section 230(3)(b) of ERA or regulation 2(1)(b) of the WTR. It
was not contended for the Claimant that he was an employee of the Respondent. The relevant
facts are set out fully in the EJ’s reasons at paras 10-39 and are only summarised below.
6. The Respondent had two categories of investment manager: those engaged as employees and
those, such as the Claimant, who were engaged as “self-employed” investment managers or
“associates”. Both appear identical to the outside world: for example, both are allocated
offices, equipment, e-mail addresses and business cards and represent the company at external
events. But there were differences between the two groups, including that employed
investment managers alone are subject to restrictive covenants and are paid a salary rather
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