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HMRC internal manual

National Minimum Wage Manual

Status: Example of court consideration: 2

Byrne Bros. v. Baird & Others (EAT/542/01)

The case Byrne Bros. v. Baird & Ors involved four workers engaged in the construction industry. This employment appeals tribunal case was primarily concerned with working time regulations but as part of the consideration the tribunal considered a general approach regarding whether someone is working in a “business undertaking” or whether they are a worker as per Section 54(3)(b) of the National Minimum Wage Act 1998.

The judgment stated that: -

“Carrying on a business undertaking” is plainly capable of having a very wide meaning. In one sense every “self-employed” person carries on a business. But the term cannot be intended to have so wide a meaning here, because if it did the exception would wholly swallow up the substantive provision and limb (b) would be no wider than limb (a). The intention behind the regulation is plainly to create an intermediate class of protected worker, who is on the one hand not an employee but on the other hand cannot in some narrower sense be regarded as carrying on a business. (Possibly this explains the use of the rather odd formulation “business undertaking” rather than “business” tout court; but if so, the hint from the draftsman is distinctly subtle.) It is sometimes said that the effect of the exception is that the Regulations do not extend to “the genuinely self-employed”; but that is not a particularly helpful formulation since it is unclear how “genuine” self-employment is to be defined.

It seems to us that the best guidance is to be found by considering the policy behind the inclusion of limb (b). That can only have been to extend the benefits of protection to workers who are in the same need of that type of protection as employees strict sense - workers, that is, who are viewed as liable, whatever their formal employment status, to be required to work excessive hours (or, in the cases of Part II of the Employment Rights Act 1996 or the National Minimum Wage Act 1998, to suffer unlawful deductions from their earnings or to be paid too little). The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-à-vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. Thus the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arm’s-length and independent position to be treated as being able to look after themselves in the relevant respects.

Drawing that distinction in any particular case will involve all or most of the same considerations as arise in drawing the distinction between a contract of service and a contract for services - but with the boundary pushed further in the putative worker’s favour. It may, for example, be relevant to assess the degree of control exercised by the putative employer, the exclusivity of the engagement and its typical duration, the method of payment, what equipment the putative worker supplies, the level of risk undertaken etc. The basic effect of limb (b) is, so to speak, to lower the pass-mark, so that cases which failed to reach the mark necessary to qualify for protection as employees might nevertheless do so as workers.

What we are concerned with is the rights and obligations of the parties under the contract - not, as such, with what happened in practice. But what happened in practice may shed light on the contractual position.

Self-employed labour only subcontractors in the construction industry are, it seems to us, a good example of the kind of worker who may well not be carrying on a business undertaking in the sense of the definition; and for whom the “intermediate category” created by limb (b) was designed. There can be no general rule, and we should not be understood as propounding one: cases cannot be decided by applying labels. But typically labour-only subcontractors will, though nominally free to move from contractor to contractor, in practice work for long periods for a single employer as an integrated part of his workforce: their specialist skills may be limited, they may supply little or nothing by way of equipment and undertake little or no economic risk. They have long been regarded as being near the border between employment and self-employment: it is for this reason that their status has for many years been a matter of controversy with the Inland Revenue and has also given rise to a string of reported cases (for example, Lee v. Chung and Shun Shing Construction and Engineering Co. Ltd. [1990] I.C.R. 409 and Lane v. Shire Roofing Company (Oxford) Ltd. [1995] I.R.L.R. 493).

Cases which “could have gone either way” under the old test ought now generally to be caught under the new test in “limb (b)”. The fact that such a subcontractor may be regarded by the Inland Revenue as self-employed, and hold certificates to prove it, is relevant but not decisive.“

In this particular case the judgment found in favour of the sub-contractors and considered them to be workers of the employer and not self-employed.