Mr P Wright v. Aegis Defence Services (BVI) Ltd UKEAT/0173/17/DM
In a judgment published earlier this month, the EAT (Mr Justice Langstaff) overturned an ET decision that Mr Wright, a private security contractor working for the Australian Embassy in Kabul, was not an employee. Langstaff J stated he had “no hesitation” in concluding that the ET was in error on this ground. It was simply “unarguable” that the contract did not contain sufficient control. The EAT substituted a decision that Mr Wright was an employee despite his written contract stating the opposite.
The judgment contains an illuminating and useful recital of the cases on contractual control referring to White v. Troutbeck but also to an earlier Australian High Court authority on the point: Zujis v. Wirth Brother Proprietary Ltd (see: paragraphs 34-41). The central question was whether, despite the high level of personal skill and judgment required by the individual, there was sufficient control reserved by the employer to direct that skill. In this case, the EAT concluded that there clearly was such control in the contractual documentation.
These conclusions may not be without significance for the private security world where the independent contractor label is frequently used but the contract may require that the employer retain a high level of control over the “contractor” given the armed, high risk and dangerous environments that they frequently work in. If this is so, such “contractors” may in fact be “employees” and have employment and health and safety rights subject to territorial and international jurisdiction.
In Mr Wright’s case, the EAT concluded that the ET did have jurisdiction to hear the breach of contract claim through the Extension of Jurisdiction Order 1994. Mr Wright had an English choice of law and jurisdiction clause in his contract. Article 3 of the Extension Order provides jurisdiction to the ET to hear a contractual dispute where a “court in England and Wales” would have jurisdiction to hear and determine the issue i.e. if service could be effected within the terms of Part 6 of the CPR. The breach of contract claim can now proceed to a full merits hearing before the ET.
However, the EAT also held that the ET was entitled and correct to come to the conclusion that Mr Wright did not fall within the territorial reach of the Employment Rights Act 1996 and, as such, his unfair dismissal and whistleblowing claims cannot proceed.
Ed Kemp represented Mr Wright and he was instructed by Colin Davidson at Slater & Gordon (UK) LLP.
CLICK HERE for the EAT’s Judgment.