In brief

• Acas has published a report on neurodiversity at work written by researchers at Birkbeck, University of London. The report emphasises the importance of neurodiversity training and proactive action to support neurodivergent employees, noting that around 15 to 20% of adults are neurodivergent (with prevalence varying by condition, gender and industry).
• The Department for Business and Trade has published the Governments response to the consultation Making Work Pay: creating a modern framework for industrial relations.
• The Ministry of Justice has announced it proposes to increase selected court and tribunal fees from April 2025. Most of the fees in scope will be increased by 3.2%, reflecting the change in CPI between March 2023 and March 2024, but a “small number” will be increased by 13.5% to account for backdated inflation to March 2022.
• The House of Lords Committee on Home-based Working has published a call for written evidence for its inquiry into the effects and future development of remote and hybrid working in the UK. The Committee is looking to understand the impact of this type of work on productivity and the broader consequences to the economy and communities. The deadline for submissions is 10.00am on 25^th April 2025.

EAT grapples with the ‘worker’ and ’employee’ problem (again)

It can be challenging for employers and their staff to understand whether they are classed as ‘workers’ or ’employees’ for employment law purposes. In Ter-Berg v Malde and another [2025] EAT 23, the EAT once again considered the case law around worker status as opposed to employment status.

An employee is a person who has an employment contract. Section 230(2) of the Employment Rights Act (ERA) 1996 defines an employment contract as “a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing“.

A worker is defined under section 230(3) of the ERA 1996 as:

“an individual who has entered into or works under (or, where the employment has ceased, worked under):

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual” [emphasis added].

In Ter-Berg v Malde and another, the Claimant was a dentist and principal of a group of three dental practices. On 1st April 2013, he sold the business to Simply Smile Manor House Ltd (Simply Smile). Subsequently, he entered an agreement with Simply Smile to provide dental services at one of its dental practices.

The agreement contained a clause stating that nothing in it created an employment relationship. In addition, Clause 36 provided that if the Claimant did not use the dental facilities “through ill health or other cause” for a continuous period of more than 20 days, he was required to do his best to find a locum (substitute) to provide dental services in his place.

In an Employment Tribunal claim for detriment and dismissal on the grounds of having made protected disclosures and unpaid holiday pay, the Claimant argued that he had been an employee or alternatively a worker. The Defendants denied this.

The Employment Tribunal concluded twice (once following the case being sent back by the Employment Appeals Tribunal (EAT)) that the Claimant was not an employee.

On appeal, the EAT found for the Claimant. It referred to the leading case on whether personal service was being provided (as required by section 230(3)(b) of the ERA 1996, namely Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51, which concluded that if the duty to provide a substitute is governed by a clause which only allows this when the contractor in question cannot work due to injury or sickness etc, this will typically point towards the personal service requirement contained in section 230(3)(b) being satisfied, unless there is something else in the case’s factual situation that points to the opposite conclusion.

Comment:

If you are slightly confused by the above, you are in good company, as most people are. This is why the Labour Government is looking to create a single status for workers and transition towards “a simpler two-part framework” for worker status(workers and the genuinely self-employed) for employment status. However, this is likely to take over a year (maybe two) to put in place. Therefore, employers and employees should continue to seek legal advice if they are unsure about employment status matters.

‘This newsletter does not provide a full statement of the law and readers are advise to take legal advice before taking any action based on the information contained herein’.