A barrister who co-founded his law firm before being removed from the business was not an employee or worker, a tribunal has found.
Employment Judge Davies, sitting at the North Shields employment tribunal ruled that Brian Mark could not be classed as an employee of north east firm Kyles Legal Practice. Mark has brought claims for ordinary and automatically unfair dismissal, protected disclosure detriment, breach of contract and claims for wages and other payments after his removal earlier this year.
The firm was heralded as a pioneer of the Legal Services Act, bringing together barristers Mark and Nick Peacock and solicitor John Turner under one roof. Peacock told local media the business would provide a ‘one-stop shop’ for criminal clients going through the court system.
The tribunal heard the three directors agreed at the outset in 2010 they would each receive £30,000 a year, initially paid through the PAYE system. However, by 2016 this changed so they were paid by way of dividend.
The tribunal heard that Mark was assigned to do the ‘lion’s share’ of Crown Court work, but in practice he did not do so. He was free to take on or turn down any particular case and was paid his monthly amount regardless of the work he did. There were no consequences when he ‘regularly’ turned down instructions.
It was also not disputed that Mark had no set working hours and could take annual leave when he chose to do so. Mark had also declared to HMRC in 2017 that he was not an employee and not self-employed.
The tribunal heard that within three years of founding the business, disagreements emerged between the three directors, partly because Mark wanted to also practise as a member of the independent bar.
In late 2018, Turner and Peacock were tipped off by a third party about what they believed was evidence that Mark had leaked confidential information about the business and deleted emails to cover his tracks. The tribunal made no assessment of whether these allegations were true or not.
After a board meeting, staff were sent a memo informing them Mark would not be involved in the day-to-day business of the firm, and he himself was told words to the effect he was being suspended.
Considering the question of employee status, Judge Davies said there was no discussion in 2010 or since about employment status, worker status or contractual terms of engagement.
The judge said that without a contract there was no contract of employment or contract as a worker. Even if there was a contract, the basic elements of the employment relationship were absent: Mark chose when he worked and was not subordinate to anybody else.
The judge added: ‘This was a relationship in which an individual could choose whether to work or not and could and did outsource the work to someone else to do it instead of them.’ This was the ‘antithesis’ of personal service associated with being a worker, the judge said. Mark’s claims were dismissed in their entirety.