Facts
Payne and Grace each claimed unfair dismissal. They had worked for periods in which they and their employers treated them as self-employed, although they were in law employees. The Employment Tribunal rejected Enfield’s illegality argument against Payne. In Grace’s case, the tribunal excluded the earlier period as unlawful performance, which left him without enough continuous service to claim unfair dismissal. The Employment Appeal Tribunal rejected Enfield’s appeal and allowed Grace’s appeal.
Issue
Did wrongly treating the workers as self-employed for tax purposes make their employment contracts unlawfully performed?
Decision
The Court of Appeal dismissed both employers’ appeals. The parties’ mistaken classification of the relationships did not amount to a misrepresentation of the facts to the Revenue. On the facts found, neither employment contract had been unlawfully performed.
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Payne’s claim was therefore not barred on that ground. Grace could count the earlier period of employment for the qualifying period. The court did not decide whether either dismissal was unfair.
Reported citations: [2008] ICR 1423, [2008] IRLR 500
Source: Full judgment
