Employment Law
From January 2006 until his dismissal, Wendell Bracken (‘WB’) had worked as a cake decorator at The Cake Whole Ltd (‘the Company’). The Company is a patisserie and bakers with eight outlets in the West Midlands region. It has a number of cake decorators that work throughout its shops providing a bespoke service to clients. The Company specialises in expensive celebration cakes, mostly for birthdays and weddings, producing dream designs for the customer’s special day.
WB is a highly skilled worker, having trained in Paris, Switzerland and London during the mid-1990s and is very experienced in the creation of designs from cake icing.
WB was provided with a document by the Company when he started working for them titled ‘Agreement for the provision of confectionery services’.
The first two clauses of the agreement stated:
‘
1. Wendell Bracken is an independent contractor of the Company, in business on his own account.
2. Nothing in this Agreement shall render Wendell Bracken an employee, agent or partner of the Company and it shall expressly not be liable to account for his income tax and value added tax and social security contributions’.
The remainder of the agreement (not reproduced for the purposes of this assessment) contained further clauses detailing the relationship between the parties. Although the Company has contracts with 25 cake decorators, across its 8 stores, WB was required to work at the Company’s shop and small attached bakery in Brewood. WB was further required to attend the Brewood bakery for 20 hours per week (described as his ‘normal working hours’). If he did not wish to work a particular shift he was required to notify the Company at least four weeks in advance and they would find a suitable replacement.
However, WB was also required to be available for at least 40 weeks per year or he would be subject to the Company’s disciplinary procedure. There was no express provision allowing WB to provide a substitute for any services he had agreed to provide but, in practice, all cake decorators could transfer shifts to other contractors from an approved list.
The Company provided a working space in the bakery and provided all of the ingredients for the icing and a uniform embroidered with the Company logo that staff were required to wear, but WB brought his own tools, including his sculpting knives and stencils. Despite the provision for ‘normal working hours’, the agreement also provided that WB was free to accept or reject customer orders during his time at the Brewood shop. It was also made clear that if there were no orders to be met then no work would be provided.
WB was not paid a salary but, instead, was given a copy of the receipt for each order he completed and was required to produce these to the Company’s finance department at the end of each month. He was then paid an agreed percentage of the customer fee. WB was never paid sick pay or holiday pay.
WB was provided with works rules and the agreement makes it clear that if these are breached staff will be subject to the Company’s disciplinary procedure. The works rules include detailed provisions in relation to health and safety and the cleanliness of operatives and their work station. The rules provide for significant sanctions in the case of breach of health and safety. If workers do not keep themselves and their work station clean or wear protective clothing then dismissal may result.
In March 2018 during a routine inspection of work stations, the Company discovered that WB had long and dirty fingernails and was not wearing gloves while decorating a cake. WB was provided with a written warning that remained on his file for twelve months.
In January 2021 WB was seen by a shift supervisor to be scratching an area of eczema on his arm and then moulding icing on a large cake without gloves. He was given a further twelve month written warning.
In November 2021 the shift supervisor was in the work toilets when he observed WB and another operative (Edmund Vincennes, who was only very recently qualified and has a clean disciplinary record) leave their respective toilet cubicles without washing their hands and return to their work stations.
Both operatives were questioned and after admitting to not washing their hands were asked to leave work immediately. No further investigation was felt necessary and both were instantly dismissed.
Both workers were given the opportunity to appeal. At their respective hearings, Edmund Vincennes had his dismissal overturned and was given a final written warning. WB’s dismissal was, however, confirmed.
Advise the Company whether WB will be able to demonstrate that he is an employee for the purposes of employment protection.
