Redrow didn't do that just to get out of stumping up £658 did it? Dear me, no. My guess is that the firm did it because it was worried there might be a queue of brickies and chippies and plasterers from Falmouth to Flint about to knock on its door. First in that queue was Bob Wright, a self-employed labour-only subcontractor. He mumbled something about holiday pay under something called the Working Time Regulations. Redrow mumbled something in reply: "Go away".
Redrow pointed to its standard labour-only subcontract document. It was printed on the back of the order given to Bob Wright. He was to be paid £200 a thousand on the tape or, if needs must, £125 a day. Familiar stuff, isn't it? So, come off it, if a man sets himself up in business as a self-employed labour-only putter-upperer or taker-downerer, surely he is his own man and buys into a simple deal … do the work and get the rate agreed. Well no, not exactly. Parliament has stepped in and tampered yet again with freedom to contract. Bob the brickie is to get benefits on top of his £200 a thousand.
There seems to be a new species of putter-upperer. There used to be only Tom the employee and Dick the self-employed bloke. Now there is also Harry the protected worker. The working time regulations, now two years old, is another bit of the European tide, lapping on the English beaches, running up the English estuaries; even the Thames barrier cannot keep it back. It doesn't matter if Harry is self-employed, calls himself his own man and is in business on his own account: the Redrows of this world must give him holiday pay and holiday time, and limit his working hours to a weekly maximum, ensure he takes rest breaks, even ensure he has extra rest breaks when the bricklaying gets monotonous. The point is that if Harry is a "worker" as defined in the regulations then he gets the benefits.
Once upon a time, there used to be only Tom the employee and Dick the self-employed bloke. Now there is also Harry the protected worker
Now then, Redrow knows what makes two and two. The answer to this two-year-old regulation is not to engage an individual under a contract whereby that individual undertakes personally to do work for another party. So, the subcontract document explained that the subby, with consent of Redrow, could sublet the brickworks and had to keep to a variable programme on site, and increase or decrease the number of bricklayers as necessary and keep a competent foreman or charge-hand on site to control and direct the labour. It even explained that the rates included Harry's liability for employer's national insurance, travelling expenses and so on.
Redrow's counsel, unsurprisingly, argued that all this meant Mr Wright was not himself a protected worker. The deal contemplated work being done by other men.
Go careful here. The first thing to establish when dealing with an act of parliament is its purpose and intent. The judge in a previous case, Byrne Bros vs Baird, said parliament's aim was to extend protection to those who needed it. He is saying, I think, that when a person is in a subordinate and dependent position vis-à-vis his or her employer, the act provides protection. This is not the same for contractors that are big enough to look after themselves.
Tony Bingham is a barrister and arbitrator.