In the recent case of Ahsan v Westmead Busienss Group Ltd, the EAT has confirmed that post-termination correspondence is not capable of negating an employment relationship. Instead, it held that the Employment Tribunal should consider what was agreed at the time the relationship began and the way in which the parties conducted themselves in so determining whether there is a contract of employment.
In this case, Ahsan began employment with Westmead Business Group Ltd in April 2007, although negotiations about the exact terms of his appointment were still ongoing as Ahsan preferred to be a self-employed contractor. A attended the office two days a week and controlled his own work load. His salary was paid monthly by cheque after Westmead Business Group Ltd had deducted tax and NI contributions. In February 2008, due to performance issues, Westmead Business Group Ltd served 3 months notice on Ahsan via e-mail. The e-mail referred to the notice provisions ‘in the contract’ and to statutory sick pay and commission entitlement. Three subsequent emails were exchanged in which Ahsan accepted that he had been self-employed.
Notwithstanding, the Employment Tribunal’s decision to disallow claims subsequently brought by Ahsan on the basis that he was not an employee, was wrong. The Tribunal had failed to look at the relationship when it was formed, and in particular take into account correspondence sent to Ahsan prior to starting work, setting out notice period, statutory sick pay and commission. This was commensurate with a contract of employment, as was the fact that Ahsan had also been provided with a staff handbook. It appeared that the Tribunal had only performed a ‘perfunctory analysis’ of the factors pointing to and from an employment relationship in considering the post-termination email exchange, rather than looking at all relevant documentation.
This is a fairly complicated issue. If you are unsure of how to deal with a similar case, please don’t hesitate to get in touch. We will be happy to give you some guidance which may save problems later on.
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