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based James Farrell, trading as JF Transport, lost his claim

9th March 2000, Page 19
9th March 2000
Page 19
Page 19, 9th March 2000 — based James Farrell, trading as JF Transport, lost his claim
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Which of the following most accurately describes the problem?

for unfair dismissal after a Glasgow Industrial Tribunal ruled he was not in fact an employee.

The Tribunal was told that Farrell worked as a subcontractor for a large national road transport company, collecting and delivering parcels and packages. Shortly before December 1995 he had phoned James McIntyre and asked him to work for him. It was explained that McIntyre would be paid 2,435 a week if he wished to pay his own tax and National Insurance, and that he would have to provide his own van. He was told that if he preferred Farrell would pay the tax for him. However, McIntyre believed it would be financially advantageous to pay his own tax and National Insurance, because he knew certain expenditures would betas deductible.

Farrell then wrote to McIntyre, referring in the letter to the fact that he was being employed on a permanent basis. McIntyre employed an accountant to advise him about the income tax properly due. McIntyre was never absent from work because of illness, but on occasion he took a holiday. It was arranged between the parties that he would try to arrange cover for his absences. If he could not he would advise Farrell, who would make his own arrangements. In such circumstances Farrell did not use McIntyre's van and McIntyre was not paid any sickness or holiday pay.

Tribunal chairman Hugh Murray said it was a fairly narrow case. On the one hand there was no doubt Farrell in a very large measure controlled McIntyre's work. He decided when McIntyre would work and the routes he would follow. He felt no compunction about changing the routes when it suited him. He required McIntyre to work in the sorting office after he had sorted the packages for delivery on his own van and to assist others who had not finished a similar task. However, ultimately, he had concluded that McIntyre was not an employee.

Though he appreciated that the intention of the parties was by no means the conclusive factor, it was nonetheless relevant. Ile found it difficult to accept that the parties ever saw McIntyre as anything other than self-employed.

McIntyre had denied he was self-employed, but the fact that he did not pay PAYE, that he employed an accountant, and that he did not receive holiday pay, strongly suggested that he was aware his status was not that of an employed person. Also, he was required to provide a significant asset in the shape of a van for the work. That was quite inconsistent with a contract of employment. Finally, it was clear that during holidays McIntyre would provide a substitute,


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