HIS HONOUR JUDGE AUERBACH:
Introduction
This matter is ongoing in the Leeds employment tribunal. Three claims were begun by the same claimant in the course of 2024 and 2025 raising various complaints. The respondents were White Rose Academies Trust and Luminate Education Group. I will refer to the parties as the claimant, WRAT and LEG.
There was a Preliminary Hearing (PH) by video before EJ Armstrong in July 2025. The tribunal's judgment was that the claimant was not an employee of LEG and was not a worker of LEG, and that all of the complaints against LEG were dismissed. This is the claimant's appeal against the decision that he was not a worker of LEG. He was represented by Emma Darlow Stearn, and LEG by Andrew Sugarman, both of counsel. I had skeleton arguments, and heard oral arguments, from them both. Daniel Piddington of counsel attended on behalf of WRAG, but advanced no arguments.
The Statutory Framework
Section 47B(1) Employment Rights Act 1996 falls within Part V (Protection from suffering detriment in employment). It provides:
Section 230 falls within Part XIV (Interpretation). It provides:
Section 43K, which falls within Part IVA (Protected disclosures), is headed "Extension of meaning of 'worker' etc. for Part IVA" and includes, relevantly, the following provisions:
Section 48(1A), within Part V (Protection from suffering detriment in employment), provides:
The Litigation History
The first claim form was presented on 23 January 2024. The claimant was represented by solicitors. The respondents were WRAG (1) and LEG (2). In box 8.1 it was identified that the claimant was claiming unlawful detriment pursuant to sections 47B(1) and 48(1A) of the 1996 Act . A details of complaint document was attached. It began by stating that the claimant had commenced employment with WRAG in September 2016. It set out that in 2019 he was designated CEO and he was the Accounting Officer. Paras. [4] – [7] stated:
Para. [8] said the claimant had a "dual role" with WRAT and LEG. Para. [9] read:
The remainder of the document set out the claimant's factual case, what protected disclosures he claimed to have made, and the detrimental treatment to which he claimed to have been subjected, and, in each case, whether by WRAT, LEG or both of them.
The complaints were defended by both respondents. WRAT did not dispute that the claimant was its employee. LEG asserted that he had never been engaged by it as an employee or a worker.
The second claim was presented on 1 July 2024 against both respondents. The claimant was again represented by solicitors. A details of complaint document was attached. It asserted that since presenting the first claim the claimant had suffered further protected-disclosure detriments and an unlawful deduction from wages. The factual basis for the further complaints was set out.
Both respondents defended the second claim. LEG asserted that the claimant had never been its employee or worker. It also asserted that all acts complained of in this claim were alleged to have been acts of WRAT and not LEG, and so this claim, as against LEG, should be struck out.
There was a case-management PH before EJ Brain on 20 January 2025. The claimant was represented by counsel (not Ms Darlow Stearn), WRAT by Mr Piddington and LEG by a solicitor. The judge set out the history of the two claims. It was noted that the claimant had been dismissed and intended to bring a third claim of unfair dismissal. It was noted that WRAT raised no issue about his status to pursue his claims against it. However, there was an issue raised by LEG as to the claimant's status to pursue any claim against it. It was common ground that there should be a PH to determine the claimant's status to pursue the two existing claims, and, possibly, an unfair dismissal claim, as against LEG. The minute then set out the issues, beginning with the following:
Case-management directions then listed the public PH to take place over three days in July 2025, following a by a case-management hearing the next day. Para. 3 of the directions included:
Para. 8 required the claimant's solicitor to send to the tribunal and the respondents' solicitors further information on two numbered matters. Relevantly, the first was "[t]he basis on which the claimant says that he has standing to pursue any of the complaints raised in the first and second claims against the second respondent". The PH minute was sent on 17 February 2025. In the meantime, on 28 January 2025, the claimant's solicitors emailed the tribunal and the respondents' solicitors. They referred to the direction to provide particulars. They stated that the second claim was pursued only against WRAT and not LEG. They also gave particulars on the second numbered matter.
Claim 3 was presented on 1 March 2025, against both respondents, by the claimant acting in person. The boxes were ticked for complaints of unfair dismissal, whistleblowing, holiday pay, arrears of pay and other payments. A details of complaint document was attached. This stated at [4]:
Para. [7] stated:
The document went on to set out further complaints of being subjected to a detriment pursuant to sections 47B and 48(1A), including some conduct which it laid at the door of both respondents.
I was told that on 15 April 2025 EJ Brain directed that the three claims be considered together.
The Employment Tribunal's Decision
At the PH on 7 – 9 July 2025 the claimant appeared in person. WRAT was represented by Mr Piddington and LEG by Mr Sugarman. At [1] of the written reasons the judge identified that the matter had been listed to determine "whether the claimant was a worker or employee of the second respondent" as directed at the PH before EJ Brain. She continued:
The tribunal noted that none of the parties disputed that WRAT was the claimant's employer. It noted that the claimant also brought claims against LEG, which was the sponsor of WRAT, and that there was a document in the bundle summarising the powers of a sponsor of a Multi-Academy Trust. It referred to a shared services agreement between WRAT and LEG of 2021, but noted that it was not disputed that they remained separate entities. It noted that the matter had been listed to determine whether the claimant was an employee and/or worker of LEG. It continued:
The tribunal recorded that it heard evidence from the claimant and, for LEG, from its CEO and Accounting Officer, Colin Booth; and it referred to the bundle and documents that were before it. As to the law the tribunal began by noting that there was a large volume of jurisprudence on the issue of employment/worker status, but that the relevant principles were clearly set out in the skeleton arguments of the claimant and LEG. It set out the text of section 230(1) – (3) and referred to a number of authorities and principles emerging from those authorities.
The tribunal set out its findings of fact over a number of pages. The tribunal then concluded that there was no express contract between the claimant and LEG. The tribunal continued:
Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA 185; [2025] ICR 1231
In Moustache Warby LJ (Elisabeth Laing and Dingemans LJJ concurring), said, in the course of discussion at [33] to [40] (I have omitted some passages in the extract below):
The Appeal
The Grounds of Appeal, and Ms Darlow Stearn in argument, accept that at no point in the claimant's pleadings, in the course of the litigation, or at the PH before EJ Armstrong, was it identified or suggested that the claimant was seeking to rely (or rely in the alternative) against LEG on the proposition that he was a section 43K(1)(a) worker of LEG. Further, in his written submission at the PH itself the claimant expressly advanced the case that he was an employee, or alternatively, a worker, of LEG, satisfying the elements of the definition in section 230(3).
However, it is contended that the tribunal erred by not considering whether the claimant was a section 43K(1)(a) worker of LEG because, prior to that PH it had never been stated that he relied only on section 230(3), the facts pleaded supported a case that he was a section 43K(1)(a) worker, and, in all the circumstances, this was a case where the tribunal at the PH should have considered that possibility. Alternatively, it should have considered section 43K "as a matter of course". Alternatively, the claimant should be permitted to introduce the argument as a new point on appeal.
The Pleaded Case
It is true that the first claim simply claimed that the claimant was either an employee or a worker of LEG, and, as to the latter, referred, expressly, neither to section 230(3) nor to section 43K(1)(a). However, I consider that, on a fair, objective reading, it advanced a case that he was section 230(3) worker, and did not advance an alternative case that he was a section 43K worker.
The concepts of employee and worker in section 230 are overlapping companions. They have a similar architecture. As the EAT put it in Byrne Brothers (Formwork) Ltd v Baird [2002] ICR 667 at [17], one way of looking at the difference is that the "pass-mark" for meeting the definition of "worker" in section 230 is lower. By contrast the section 43K(1)(a) definition of "worker" contains elements which are conceptually different and unique to that definition.
Section 43K(1) also states that it applies to an individual who is "not a worker as defined in section 230(3)". In Day v Lewisham and Greenwich NHS Trust [2017] EWCA Civ 329 ; [2017] ICR 91 it was held that this must be read as referring to "an individual who as against a given respondent is not a worker as defined by section 230(3)". However, while it is therefore possible to be, simultaneously, a section 230 worker of one employer, and a section 43K worker of a different employer (or a section 43K worker of each of two employers), it is not possible, simultaneously, to be both a section 230 worker and a section 43K worker of the same employer.
In the present case, the details of the first claim asserted that from 2020 the claimant had a dual role within WRAT and LEG. They asserted that there was a contractual relationship between the claimant and LEG, and that there was "a sufficient degree of control over the Claimant and therefore the Claimant asserts he is an employee of the Second Respondent and/or a worker in the alternative." Other claimed features relied upon put forward a case that he was significantly integrated into LEG's organisation, and committed to providing his services personally. All of that bespeaks a positive case being advanced, in substance, invoking the concepts relevant to the section 230 definitions and case-law, that the claimant was an employee, or alternatively a worker of LEG, within the meanings of those concepts in section 230.
Claim 2 did not elaborate on the legal basis on which the further detrimental treatment complaints were pursued. But I note that this claim also included complaints of unlawful deduction from wages. Such complaints can only be pursued by an employee or a section 230(3) worker. In the event, as I have noted, it was later stated that claim 2 was not maintained against LEG. But the way in which this claim was at first advanced, was consistent with the picture presented by claim 1, that the claimant was claiming to be an employee, alternatively a section 230(3) worker, of LEG.
In the minute of EJ Brain's PH there was, counsel were agreed before me, an obvious error at [1.2] under "Employment Status" in the judge referring to whether the claimant was a worker for the purposes of section 83 Equality Act 2010 . Ms Darlow Stearn properly accepted that section 83 of that Act (which, confusingly, uses the definitional term "employee") is (though not identically worded) in substance the sibling provision of section 230(3) of the 1996 Act . (See, on this, the discussion in Secretary of State for Justice v Windle [2016] EWCA Civ 459 ; [2017] ICR 83 .) In so far as Ms Darlow Stearn submitted that the fact of this error supported the argument that the list of issues needed, more generally, to be looked at again, I do not agree.
The natural reading of what EJ Brain meant to put, therefore, was that the issues were whether the claimant was an employee, alternatively a section 230(3) worker. That was consistent with how, as I have described, the complaints were, in substance, advanced in claims 1 and 2. I note also that there is no suggestion, anywhere in that minute, that counsel who appeared for the claimant at that hearing suggested that he contended, or sought to argue (whether on the basis of the claims as framed, or by way of application to amend) that he was, alternatively, a section 43K(1)(a) worker of LEG.
Although the direction for particulars given by EJ Brain referred to a requirement to send information of the basis on which the claimant said he had standing to pursue any of the complaints in the first and second claims, as against LEG, this referred in brackets (only) to the number of the second claim. That was consistent with the fact that, in its response to the second claim, LEG had (as well as repeating that the claimant had never been its worker or employee) asserted that all of the matters complained of in that claim were alleged actions of WRAT only; and consistent with the claimant's then solicitors, following the EJ Brain PH, indicating that claim 2 was only pursued against WRAT. In any event they did not attempt to take the opportunity to assert that the claims in the first claim form were pursued against LEG on the alternative basis that the claimant was a section 43K(1)(a) worker. Nor was it raised that the EJ Brain list of issues required correction in this regard.
While the third claim was tabled by the claimant as a litigant in person, it followed on from the first two claims, to which he asked that it be joined, and the text of the details of claim substantially borrowed from those attached to claim 1, including the passages which, as I have indicated, substantially conveyed that the claimant was claiming to be an employee, alternatively a section 230(3) worker. I also note once again that, as well as claiming further protected-disclosure detriments and unfair dismissal, this claim form also raised wages claims against both respondents.
As already noted, and consistently with all the foregoing, at the hearing before EJ Armstrong the claimant expressly advanced his case on the basis that he was an employee of LEG, alternatively a worker, within section 230(1) and (3).
Pausing there, while it is true that, prior to the PH before EJ Armstrong, there was no express reference to either section 43K(1) or section 230(3), and that, in places, the EJ Brain minute framed the issues for the next PH simply as whether the claimant was an employee or a "worker" of LEG, I conclude that the pleaded case was, at all times, that the claimant was a section 230(3) worker, and not that he was, in the alternative, a section 43K(1)(a) worker. I therefore conclude that the Armstrong tribunal did not err by failing to identify and address a component of the claimant's pleaded case. It did not commit the error identified in the first three sentences of para. [39] in Moustache .
Error by failure to identify and determine a section 43K(1) case that was not pleaded?
Did the tribunal err, by failing to identify and consider the section 43K(1)(a) argument, notwithstanding that reliance upon that provision was not pleaded? In the language used in Moustache at [39], was this a case of the exceptional kind outlined in Drysdale ? In the language of Moustache at [40] was it "necessary (that is to say, essential)" that it should be raised and considered by the tribunal? Ms Darlow Stearn submitted that it was. Particularly in oral submissions, she developed her arguments in considerable fine detail. But they essentially had two broad planks.
First, reliance was placed on the fact that the claimant was, at the PH before EJ Armstrong representing himself. As the judge noted, he expressed a concern at the start that he lacked skill in cross-examination and knowledge of the law. Ms Darlow Stearn submitted that the fact that he was a senior executive and skilled in another profession was not relevant. Secondly, it is said that the pleadings and/or evidence and/or findings of fact made by the tribunal "overwhelmingly indicated" that the three elements of the section 43K(1)(a) test were met. It is also submitted that the fact that the tribunal concluded that there was no contract between the claimant and LEG did not matter, because, as a matter of law, it sufficed that there was a contract between him and WRAT.
As to the first strand of the argument, the Drysdale guidance, as reproduced and endorsed in Moustache , emphasises the wide margin of appreciation that tribunals have in deciding what assistance to provide to a litigant in the given case, and that relevant considerations are likely to include, not just whether a party is represented, but, if not, their apparent level of competence and understanding. The tribunal is also subject to the overriding requirement to be impartial.
In this case, while the claimant was a litigant in person representing himself at the hearing, his first claim (as well as his second claim, though later no longer maintained against LEG) had been presented by his then solicitors, and relied upon detailed, lengthy, particulars of claim. He was also represented by counsel at the case-management hearing before EJ Brain. His third claim drew on the pleadings in the first claim and relied on the same historic background facts and analysis. This was not a case where the claimant was appearing at a hearing without having had the benefit of any professional input to help him formulate the legal and factual basis of his complaints.
Further, while the judge referred to the claimant expressing concern about his lack of skill in cross-examination and knowledge of the law, her conclusion was that she had no concerns about his ability to fully put his case in a skilful and clear manner. She said specifically that his skeleton argument was clearly structured and relevant to the legal and factual issues. I note that it indeed referred to section 230(1) and (3), set out what he regarded as the relevant facts, his analysis of how the law should be applied to the facts, and referred to authorities that are pertinent to section 230.
Turning to the second plank of this argument, in Moustache Warby LJ considered a number of other authorities, including this at [42]:
I observe that in McLeary all of the precise necessary legal and factual ingredients of a constructive discriminatory dismissal claim had been pleaded, because the claimant had pleaded incidents of discriminatory treatment during employment, and (for the stated purpose of an unfair constructive dismissal complaint) that that same treatment amounted to a fundamental breach which had not been waived and had materially influenced his decision to resign. The precise legal and factual elements of those two complaints, taken together, without more, provided the precise legal and factual elements of the putative constructive discriminatory dismissal complaint.
The present case is not like that. Firstly, the legal ingredients of the section 43K(1)(a) definition of worker are not the same as those of the section 230(3) definition. They are materially different. The very point of section 43K is that it enables someone who is not, in fact and law, a section 230(3) worker, to claim that the facts do, however, fulfil the elements of one or other of the different definitions of worker in section 43K(1). Secondly, while Ms Darlow Stearn contended that the facts of this case would have been a natural fit for section 43K(1)(a), and could have been found to satisfy all of its components, she indicated in oral argument that she did not press the contention that it would actually have been perverse (had the tribunal considered it) for the tribunal to have concluded other than that the facts found showed that section 43K(1)(a) was satisfied.
I agree with Mr Sugarman that determination of whether the claimant was a section 43K(1)(a) worker of LEG would have required the tribunal to determine some issues to which it was not inevitable that there was only one answer, which would have called for an evaluative judgment and which may in some respects have required further findings of fact. These included whether the claimant worked "for" LEG in the section 43K(1)(a) sense. Although at [65], [68] and [90] the tribunal used the word "for", it placed it in inverted commas, and referred at [90] to working "for" LEG "in any sense". Further, at [76] and [82] it found that he did some work "for or with" LEG, which was of benefit to WRAT. The section 43K(1)(a) context would require further findings.
Similarly, the tribunal would have needed to say more than it did, in order to provide an answer to whether the correct analysis was that the claimant was "introduced or supplied" to work for LEG by WRAT, given, for example, its opening findings that the wider context was that LEG was the sponsor of WRAT, and the powers which, as such, LEG had over WRAT.
The tribunal would also have had to determine whether the terms on which the claimant was engaged to do the work were in practice substantially determined by LEG. McTigue v University Hospital Bristol NHS Trust [2016] ICR 1155 (EAT) holds that this can, in a given case, be simultaneously true of both the person for whom a claimant works, and the person who introduced or supplied them to do the work. Nevertheless, the findings that the tribunal made, for example, as to the claimant's job including some LEG targets, or his being managed by Mr Booth (who sat on the boards of both companies) or his having line management responsibilities for some LEG employees as well as some WRAT employees, were not bound, without further findings, to point to the conclusion that "terms on which he is or was engaged" were "substantially determined" by LEG.
I conclude that this is not a case where the section 43K(1)(a) argument and analysis was one which "shouted out" in the McLeary sense, nor that it was for any other reason one in which, in Moustache terms, the fundamental duty of fairness meant that it was "necessary (that is to say, essential)" that the tribunal raise and consider it. The tribunal did not err by failing to do so.
I have noted that there was a further doctrinal disagreement as to whether, for the section 43K(1)(a) definition to be fulfilled, there must be a contract with the putative employer. Mr Sugarman contended that Sharpe v The Bishop of Worcester [2015] EWCA Civ 399 ; [2015] ICR 1241 so decides. Ms Darlow Stearn contended that this was not the ratio of Sharpe , which had been properly distinguished by the EAT in W v Highways England [2025] EAT 18 , and that it was sufficient that there was a contract with the putative introducer or supplier. She sought to draw support from passages in McTigue and Day and argued that it cannot have been Parliament's intention that there must be a contract with the putative section 43K(2)(a) employer, as, were that right, section 43K would not extend the protection in the paradigm tripartite case in which the end user was not an employer, on the basis that there was no necessity to imply a contract with it. This is an important legal issue, but, in the event, not one on which I need to opine in order to determine this appeal.
Should the tribunal have considered section 43K(1)(a) as a matter of course?
Ms Darlow Stearn advanced the alternative submissions that the present tribunal should have considered section 43K as a matter of course, at least on the facts of this particular case, or, alternatively, that "tribunals ought to consider the extended definition as a matter of course when considering employment status in whistleblowing claims", in line with the protective purpose of section 43K to extend whistleblowing protection to a wider category of claimants. In oral submissions she narrowed the latter submission to cases involving two putative "employers".
In Langston v Cranfield University [1998] IRLR 172 the EAT discussed at [21] that there are certain types of case where "a principle is so well-established that an Industrial Tribunal may be expected to consider it as a matter of course". The well-known examples from earlier authorities, to which it referred, relate to the determination of whether a dismissal by reason of conduct, or redundancy, is fair or unfair, and basic or core heads of loss which will ordinarily need to be considered when an unfair dismissal claim has succeeded. For a recent discussion, in a case concerning the approach to be taken when considering the fairness of a dismissal by reason of the employee's absence record, see Bugden v Royal Mail Group Limited [2024] EAT 80 .
Ms Darlow Stearn also cited Small v Shrewsbury and Telford Hospitals NHS Trust [2017] EWCA Civ 882 ; [2017] IRLR 889 in which the Court of Appeal concluded that the tribunal had erred by not considering, when determining remedy for the "dismissal" of a worker contrary to section 47B, whether he had what was referred to as a Chagger or stigma loss claim, even though he had not specifically raised the argument.
The categories of issue to which the general "matter of course" approach has been said, over the decades, to apply, are limited and few. In Remploy Ltd v Abbott UKEAT/0405/14 misgivings were expressed even about Langston , which was described as a high-water mark, and some of the practical difficulties which may arise from such an approach were canvassed. All of the established categories of which I am aware concern the approach to the application of a specific single particular statutory test, such as section 98(4) or section 123(1) of the 1996 Act .
Small does not take matters any further. It was concerned with the heads of loss falling under the umbrella of compensation for a contravention of section 47B. Further, Underhill LJ (Lloyd Jones LJ concurring) held at [14] that the Chagger or stigma head of loss should have been considered by the tribunal in that case "on the basis of the particular material before it". Although Underhill LJ added the words "as a matter of course", he also expressly stated that he was not saying that it would always be so, only that it was so in that case. I therefore do not think this authority in fact adds anything to the general jurisprudence on the general categories of "matter of course" case.
I conclude that none of the established examples involves a tribunal being required as a matter of course to consider separate provisions of the statute which the party concerned has not in fact relied upon, and which set out a distinct legal test from that which the case presented to the tribunal requires it to apply. I consider that the EAT should be very circumspect before extending the list beyond those long-established and familiar categories in which the point in question is to be regarded as being ordinarily a sub-strand of the issues falling under the umbrella of the particular statutory provision which the tribunal is applying in the given case. I decline to do so. The alternative contention that the present tribunal should have done so as a matter of course in the particular circumstances of this case does not add anything in substance to the arguments about why the tribunal should have done so in those particular circumstances, that I have already considered and rejected.
Should the claimant be permitted to run the section 43K argument as a new point in the EAT?
In Secretary of State for Health v Rance [2007] IRLR 665 , the EAT reviewed a line of authorities including a number of decisions of the Court of Appeal, which had considered the approach to be taken when a party seeks to run a point for the first time at the appeal stage. At [50] the EAT drew out the following principles from the authorities:
This is a case where determination of the section 43K(1)(a) issue would, as I have set out, at least have required further evaluative conclusions and determinations by the tribunal, which the EAT is not in a position to do in the same way that the tribunal could, and, potentially, further fact finding, which the EAT could not do at all. I do not consider that the EAT is in possession of all the material that would enable it fairly to dispose of the issue. For reasons I have set out I do not accept that the section 43K(1)(a) analysis was, over and above being arguable and one that might succeed, so obviously very strong as to be "an obvious knock-out" point.
This is also not a case where the point should be allowed to be advanced to avoid a glaring injustice to an unrepresented party. Although the claimant was a litigant in person when he tabled his third claim, and at the hearing in question, he had had the benefit of professional advice when the basis on which his claims were advanced was formulated and first set out, and the relevant issues had been considered by the tribunal at an earlier hearing at which the claimant was professionally represented. The fact that, with the benefit of the advice of a different legal team after the tribunal's decision rejecting the claims advanced in that way, he wishes now, by this appeal, to have the chance to advance his case in a different way is not a good or sufficient reason to permit him to do so.
Outcome
The appeal is dismissed.