Connolly v Whitestone Solicitors (Jurisdictional Points : Fraud and illegality)

An employee who knows that his assertion to be self employed is unsustainable and yet claims to the Revenue to be self employed misrepresents his own understanding of the position and acts in bad faith; it is contrary to public policy to lend support to him in an unfair dismissal claim.� Enfield Technical Services v Payne [2007] IRLR 840 (EAT), [2008] IRLR 500 (CA) considered and applied.

In this case, however, the Employment Judge having correctly raised the issue of illegality, did not apply the law correctly and did not deal adequately in her reasons with the Claimant�s case.� Moreover she should have ensured that the question whether he knew his assertion to be self employed was unsustainable was put to him for him to deal with.

This is an appeal by Mr Stephen Connolly (�the Claimant�) against part of a judgment of the Employment Tribunal (Employment Judge Slater sitting alone) dated 3 June 2010.

The Claimant worked for the Respondents between 28 September 2006 and 9 July 2009 as a solicitor. In circumstances which I shall set out in greater detail in a moment, it was agreed that he would be treated as self employed and paid gross.� He presented himself to Her Majesty�s Revenue and Customs as self employed.�

Following the termination of his engagement (to use a neutral phrase) with the Respondents the Claimant brought proceedings for unfair dismissal, breach of contract and holiday pay.� He asserted that he was an employee.� The Respondents denied that he was an employee, contending that he was self-employed.� The Employment Judge decided that the Claimant was indeed an employee; and there is no cross-appeal from that finding.�