Claimant v The British Council
Outcome
Individual claims
The tribunal held that the claimant was not an employee or worker of the respondent at the relevant time, and therefore the tribunal did not have jurisdiction to hear the claim for holiday pay.
The tribunal held that the claimant was not an employee or worker of the respondent at the relevant time, and therefore the tribunal did not have jurisdiction to hear the claim for refusal to pay for grading between December 2022 and February 2023.
The tribunal held that no contract (express or implied) existed between the claimant and the respondent, and therefore the tribunal did not have jurisdiction to determine compensation for days when the claimant was not working.
Facts
The claimant worked as an IELTS examiner for the respondent's Global Hub from October 2016, initially supplied via Carbon60 Limited and subsequently Flexy Corporation Limited as a temporary agency worker, both part of the Impellam Group. The claimant was paid by these agencies for marking written and video speaking tests. He contended that he was an employee or worker of the respondent, arguing the agency arrangements were a sham and that the respondent exercised significant control over his work through detailed standards, monitoring, and certification requirements. The respondent asserted it engaged IELTS examiners solely via a managed service provider (Comensura) which subcontracted to agencies, and that there was no direct contractual relationship with the claimant.
Decision
The tribunal held that the claimant was neither an employee nor a worker of the respondent. It found that the express contractual arrangements — the managed services contract between the respondent and Comensura, and the temporary agency worker agreements between the claimant and Carbon60/Flexy — reflected the genuine business reality. The tribunal concluded it was not necessary to imply any direct contract between the claimant and the respondent, and that the agency arrangements were not a sham. The control exercised by the respondent over IELTS examiners was in its regulatory capacity as part of the IELTS Partnership, not as an employer. The claim was dismissed for lack of jurisdiction.
Practical note
Even where an end user exercises significant control over an agency worker's standards and performance (here, through certification, monitoring, and detailed professional standards), that control, if exercised in a regulatory capacity, does not convert the relationship into employment or worker status — the tribunal will uphold genuine quadripartite agency arrangements and require clear necessity before implying a direct contract.
Legal authorities cited
Statutes
Case details
- Case number
- 3201079/2023
- Decision date
- 6 February 2025
- Hearing type
- preliminary
- Hearing days
- 6
- Classification
- contested
Respondent
- Sector
- education
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- IELTS Examiner (OSM and VCS)
Claimant representation
- Represented
- No