In James v Redcats, the EAT set out a useful test in order to establish who is a "worker”. In this case the claimant was a courier who used her own vehicle to deliver parcels to private addresses and who claimed that she was entitled to the national minimum wage as she fell within the definition of either a home worker or a worker under the National Minimum Wage Act 1998.

The definition of a worker under the National Minimum Wage Act 1998 is identical to that under the Employment Rights Act (ERA) 1996. Where there is no contract of employment there are 3 elements to consider when deciding if someone is a worker:

• There must be a contract to perform work or services,
• The work must be done personally,
• The provision of the service must not be performed in the course of running a profession or business and the other party is a customer or a client.

The EAT provided guidance on whether there was a personal obligation and held that this would be unaffected by the ability to provide a substitute if the worker is sick or on holiday as the worker is 'unable' to work rather than 'unwilling'.

With regards to whether the work is provided in the course of running a business, the EAT ruled that it was important to look at the dominant feature of the contractual arrangement between the parties. If the dominant feature is personal service, rather than an objective or an outcome, the contract will not be one of business.

The EAT also looked at mutuality of obligation and criticised past decisions stating that 'the fact that there was a lack of any mutual obligations when no work was being performed was of little, if any, significance when determining the status of the individual' otherwise if this were the case casual and seasonal workers would be denied worker status and  consequently the protection of the minimum wage.

In Croke v Hydro Aluminium Worcester Ltd the EAT held that where an individual supplies his services to an employment agency through his own company and the employment agency, in turn, provides the services of that company to an end user, the individual was a "worker" of the end user for the purpose of section 43K ERA 1996.

Section 43K provides an extended definition of "worker" and provides that 'worker' includes an individual who is not a worker as defined by section 230(3) ERA 1996 but who works or worked for a person [where] he is or was introduced or supplied to do that work by a third person and the terms on which he was engaged…. were substantially determined….by the person for whom he works ….. or by the third person or by both'.

Accordingly, the tribunal did have jurisdiction to hear the individual's claim that he was a worker who had been subjected to a detriment (when his contract was terminated) on the ground that he had made a protected disclosure under the whistleblowing legislation.