Tracy Alger v Clayton Bowmore Group Holdings PLC

The determination to be made as a preliminary issue is whether the deceased, Mr. Eric Alger (Mr. Alger), was directly employed by the Defendant, Clayton Bowmore Group Holdings Limited (Clayton Bowmore) to work as a bricklayer at the Prince Regent Hotel and Church refurbishment project on Manor Road, Chigwell (Woodford Bridge project/site) in 1988 and so was an employee in all respects save for payment of his own tax and national insurance. In the alternative, whether Mr. Alger was engaged by a labour only sub-contractor, contracted to Clayton Bowmore to provide labour to the refurbishment project. It is common ground that Clayton Bowmore was the main contractor on the Woodford Bridge site.

The claimant is the Widow and Administratix of the estate of Mr. Alger. She had known Mr. Alger from when they were young children and they married on 2 June 1990. They had two sons. Mr. Alger was born on 31 January 1966 and died on 26 November 2021. He had developed symptoms which were diagnosed as mesothelioma in December 2020. He died eleven months after the mesothelioma diagnosis from a malignant peritonealmesothelioma in hospital, two days after his admission to that hospital. Death was stated to be due to bronchopneumonia and malignant mesothelioma. He was 55 years old.

The Claimant contends that Mr. Alger was exposed to asbestos when employed as a bricklayer on the Woodford Bridge project in 1988. Hercase is that Mr. Alger was self-employed in that he was responsible for his own income tax but was directly engaged by the Defendant to work on the Woodford Bridge project.

In the alternative, if Mr. Alger’s primary case fails and Mr. Alger is found to have been working for a sub-contractor, the Claimant argues that Clayton Bowmore was responsible for his health and safety as the main contractor with overall responsibility for safety of all people working on the Woodford Bridge project.

Clayton Bowmore deny that it directly engaged Mr. Alger and deny that he was or should be considered their employee. They contend that he was working for a specialist bricklaying sub-contractor as an independent subcontractor. They further deny that Mr. Alger was exposed to asbestos dust in the course of his contract and point to asbestos being closely and heavily regulated by 1988, not least by the Control of Asbestos at Work Regulations 1987.

The Defendant was wound up in 1997 and has been restored to the Company Register for the purpose of this litigation. There are no known assets. It is common ground that the Defendant held Employer’s Liability Insurance (ELI) with Generali in the relevant period. The successor to Gernerali is Bothnia Insurance.

The Defendant was not able to produce the actual ELI policy for the Woodford Bridge site contract but I have been referred to two Generali policies from 1988. In relation to the definition of “employee” the two policies use virtually identical definitions, namely:

“Employee shall mean:

(a)

person under a contract of service or apprenticeship with the insured

(b)

labour master and persons supplied by him

(c)

person employed by labour only sub-contractors

(d)

self-employed person

(e)

person hired from any public authority company firm or individual

while working for the Insured in connection with the business”.

The Claimant’s case is that, given his self-employed status, Mr. Alger falls within one of the categories (b) to (d) above. No public liability insurance has been traced. Practically, the Claimant can only recover damages if Clayton Bowmore was Mr. Alger’s employer.

When an employer deducts tax and pays national insurance it is straightforward to identify the relationship as one of employer and employee. If the person is self-employed and pays their own tax and national insurance, they may also be an employee. There is no one single test for the distinction between an employee and an independent contractor [Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374].

In Lane v Shire Roofing Company (Oxford) Limited [1995] IRLR 493 a worker, who had obtained self-employed financial status, paying his own tax and national insurance working as a one- man firm, was considered to be an employee when he answered an advertisement seeking men to work on a large roofing subcontract in the course of which he fell and suffered an injury. Payment of his own tax and national insurance was not definitive, and the decision was fact sensitive.

Historically, the question of control is significant –Chadwick v Pioneer Private Telephone Company Limited [1941] 1 All ER 522. In Ready Mixed Concrete (SE) Limited v Minister of Pension and National Insurance [1968] 2 QB 497 McKenna J observed:

(i)  The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master;

(ii)  He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master;

(iii)  The other provisions of the contract are consistent with its being a contract of service”.

Stephenson LJ in Nethermere (St Neots) v Gardiner [1984] ICR 612 held there had to be an irreducible minimum of obligation on each side to create a contract of service. Munkman on Employers’ Liability, 17th Edition, restated the necessary elements in the following way:

(i)  A contract by which:

(ii)  There are no sufficient contra indications from the contract itself (or from the factual

Lord Clarke of Stone-Cum-Ebony in Autocleanz Limited v Belcher [2011] 4 ALL ER 745 restated those elements but added 3 further propositions:

HMRC v Professional Game Match Officials Ltd [2024] UKSC 29 concerned employment status, in the context of taxation and National Insurance payments. The Supreme Court provides a helpful summary and review of the legal principles in distinguishing between an employee and a worker, particularly as to concept of mutuality of obligation and control (at paras 23–68 of the judgment). There is a focus on the three- part test of employment status in Ready Mix Concrete and also a criticism of overfocus on the first two of the tests in Ready Mix Concrete and to treat other circumstances of the parties’ relationship as of less significance unless to negate the existence of an employment relationship.

Christopher Gale, the Contracts Director of Clayton Bowmore at the time of the Woodford Bridge project in 1988 provided two witness statements, dated 23 January 2025 and 26 June 2025 and gave evidence. He detailed the setting up of the company in 1975 between Bill Bowling, Brian Clayton and Trevor Morris. He described its early years as being a building company that built social housing. Their employees were bricklayers and joiners.

Mr. Gale said, in his first statement that he started employment at Clayton Bowmore in the early 1980s. In his second statement, after the Claimant’s disclosure of Clayton Bowmore’s advertising for bricklayers throughout the 1980s, he changed this evidence and stated that he likely started at the end of one of the projects advertised, namely the end of 1986. He also had sight of Companies House records and relied on being appointed Director for Clayton Bowmore on 11 September 1987. Further, he pointed to evidence in a Report from the Joint Administrative Receivers, dated 7 April 1993 which described Mr. Bowling selling a shareholding to each of the directors, including himself in September 1988.

Mr. Gale described his employment as being to assist in its expansion, tighten procedures and make it more efficient. He oversaw all projects with the individual sites being managed on a daily basis by the Site Managers. He would visit the sites and said that he visited the Woodford Bridge site every one to two weeks. He said that the contract was worth £2.5 million, lasted around nine months and said that bricklaying was about a third of the work. The transcript of Scobie v Clayton Bowmore (1990) details that Pinnacle Hotels owned the Prince Regent Hotel and that Techno 2001 Ltd, trading as Techno Leisure (Techno), a hybrid organisation that supplied design, build, finance and management packages to building owners, agreed with Pinnacle to arrange the project. On 7 June 1988, Techno entered into a contract with Clayton Bowmore whereby Clayton Bowmore agreed to carry out the work for £2,382.534. In addition to being employers under the contract, Techno were the architects and quantity surveyors. The main contract provided for the employment by Clayton Bowmore of nominated sub- contractors. Seventeen sub- contractors were employed on the project. However, the Defendant has onlyidentified Scobie, the catering equipment specialists.

Mr. Gale said that Clayton Bowmore was a company based in Wakefield and that their direct employees lived around that area. It was company practice, in the main, to commission sub-contractor businesses who themselves would provide their own labour, either from their own employees or by engaging the additional labour they needed. He said that these general sub-contractors would be left to deliver the work, subject to the usual competence requirements on engagement and overall site supervision. In summary, Mr. Gale’s position was that he expanded sub-contracting to reduce risk to the company as well as to company personnel. He said that he moved employees on the books to sub-contractors. He confirmed that the employees of Clayton Bowmore were bricklayers and joiners, albeit he described Clayton Bowmore as a construction company rather than a bricklayers’ company. I note from the Administrative Receivers Report that the Joiners Division was established in 1983 with the establishment of Britannia Woodworking Limited as a wholly owned subsidiary.

In cross-examination, Mr. Gale was taken to the accounts for the year end 31^st March 1989 which showed that the number of employees went up from 262 employees in 1988 to 289 employees in 1989. He was referred to a further increase as evidenced in the accounts for the year ended 31^st March 1990 from 289 to 324. Mr. Gale’s explanation was that he brought in more managers but agreed that they would not all be managers. With the passage of time, he could not provide an explanation save to say that he did not produce the accounts. He did not dispute that the accounts were accurate.

Mr. Alger in his statement, dated 3 October 2021, said that for seven months in around 1988 he worked for a bricklayer contractor on the conversion of a church in London into an extension for a hotel and on the refurbishment of the existing hotel building, which was the Prince Regent Hotel on Manor Road in Chigwell. This was the Woodford Bridge project.

Mr. Alger described that when he first arrived on the site, the church was in a state of demolition and that at the back there was a boiler room. He said that insulation on the pipes was being ripped off by the demolition gang. He said that there were clouds of dust around him. He described that it was only as old materials were stripped out, including walls and panels that they could start the job of installing the new walls and partitions. He said that at the end of each day working on the church, they had to sweep up the dust and debris. He believed that the lagging and fireproof insulation contained asbestos. He does not say that he was sent away until the demolition completed and it’s a reasonable and logical interpretation of his words that he was involved in labour work outside bricklaying. Indeed, he said that he worked seven days a week from 8am to 4pm.

Working outside bricklaying is further evidenced by Mr. Alger’s account of working on the hotel next door, taking down the old ceiling and installing the new ceiling. He described work to extend the kitchen and also to provide a corridor down the side, with fitters knocking off the lagging by hand which caused a lot of dust. Graphically, Mr. Alger said that taking down the old ceiling meant that dust rained down them. Mr. Alger said that he was not provided with a mask or warned of the dangers of asbestos.

Mr. Gale relied on the part of Mr. Alger’s statement where he said that he was working for a bricklayer contractor in order to support his recollection that work would have been sub-contracted.

He also gave evidence that Mr. Alger would not have been exposed to asbestos on the Woodford Bridge site. At one stage, Mr. Gale was adamant that Mr. Alger’s work description did not happen. He said that the account of stripping lagging without PPE belonged to a different age and was not how Clayton Bowmore worked on its projects in the 1980s.

However, Mr. Gale recalled being alerted by Techno to the presence of a boiler room on the church site with pipework. He could not remember whether Techno told him there was asbestos there or might be but he believed that he/ Clayton Bowmore commissioned an asbestos survey but did not recall whether asbestos was located. He stated that if it had been, work would not have started until the building was signed off as “asbestos free”. Mr. Gale agreed that Mr. Alger’s description of the areas of the work – including there being a boiler room and an extension of a kitchen- were accurate. He thought that there was a strategy to make the kitchen in part kosher. This also is referred to in the Scobie judgment.

The project did not reachcompletion. Mr. Gale said that the contract came to an acrimonious end as Techno fell out with the owners and terminated the contract. Mr. Gale did not think that Clayton Bowmore was paid. This would have been a significant loss for the company and it is difficult to see why there is not a list of all sub-contractors who may have suffered loss. Clayton Bowmore became a public limited company in 1991 but went into liquidation in 1993.

Mr. Gale was referred to advertisements obtained by the Claimant from the British Newspaper archive from 1986 and 1987, which advertised for bricklayers with contact numbers being those of the site manager or Clayton Bowmore. He said that the adverts made him realise that he only started work for Clayton Bowmore in the late 1980s as he recalled being at the end of a project in Tonbridge in 1986. This was contrary to Mr. Gale’s first statement where he said that he started employment with Clayton Bowmore in the early 1980s. Mr. Gale made a further change, this time to his second statement. In his second statement, Mr. Gale said that a Hull project, where there were advertisements by Clayton Bowmore for bricklayers, were before his time with Clayton Bowmore. There were advertisements in the summer of 1987. In evidence, Mr. Gale accepted that he was in employment at Clayton Bowmore at the time of the Hull project. Further, he said that he was its site manager.

Mr. Gale explained that he was not saying that they did not directly recruit but that the emphasis was on sub- contractors. He accepted that the adverts showed direct recruitment although largely considered that they were before his time at Clayton Bowmore.

Mr. Gale was referred to advertisements in 1989 for bricklaying gangs. He said that he thought this was a legacy Housing Association project and, in his statement, gave a definition of Brick Laying Gangs as “i.e. subcontractors”.

There were no advertisements located in relation to the Woodford Bridge project. However, in one part of his evidence, Mr. Gale said that Clayton Bowmore subcontracted for labour and Clayton Bowmore provided all the materials. Mr. Gale also said that Clayton Bowmore continued to recruit for projects in the late 1980s by placing signs by the sites advertising for joiners, bricklayers, labourers and other tradespeople.

Mr. Gale agreed that a bricklayer would not be expected to take walls and/or ceilings down and that it was not consistent with doing a specific job. He agreed that even if a person was employed with a specialist sub-contractor, he could speak to the subcontractor and pay extra money for the person to do other work.

The Claimant argues that Mr. Alger’s statement where he states that he “worked for a bricklayer contractor” on the contract site is not inconsistent with the “bricklayer contractor” in fact being the Defendant (as opposed to a specialist third-party bricklaying company). The Claimant relies on four arguments. Firstly, Mr. Alger would not differentiate between the Defendant as the main contractor and a “bricklayer contractor”, particularly due to the history of Clayton Bowmore in advertising for bricklayers/bricklayer gangs in the 1980s. Secondly, Mr Alger worked in the south for 18 months and may well have responded to a board advertisement or word of mouth, as was common working practice of Clayton Bowmore. Thirdly, Mr. Alger identifies one employer for whom he worked in the south, Rob Bindings, and identifies three different contracts that he worked on for Rob Bindings in the late 1980s. He does not identify any other contract or site other than the Woodford Bridge project. It therefore is likely that the Defendant recruited Mr. Algar for 7 months on the Woodford Bridge project, the period of the contract, and that a specialist bricklayer contractor would have provided him with other work during his 18 months in the south. Fourthly, Mr. Alger’s work clearly extended beyond specialist bricklaying and related to work consistent with him having been recruited as a labourer. They refer to a schedule of the advertisements they located through archives to show that it was common for the Defendant to advertise for “labour only” tradespeople (including bricklayers) during the 1980s.

The Defendant relies upon the section in Mr Alger’s statement where he said that he worked for a bricklayer contractor on the Woodford Bridge project. The Defendant argues that Clayton Bowmore was a project contractor and not a specialist bricklayer contractor. They point to Mr. Alger’s work history as set out in his Industrial Injuries Disablement Benefit application (undated) where his work history from 1987 – 1999 is entered as “self-employed” and with no mention of the Woodford Bridge project. However, the application is unsigned and likely filled out by others. The Defendant points to Mr. Gale as having no axe to grind and no incentive to give evidence other than that which is true to the best of his recollection. They point to the adverts having no relation to the Woodford Bridge project and the 1987 – 1989 adverts showing a moving away from advertising for bricklayers.

Mr. Alger said that he worked for all the major housebuilders. He referred to the work being around the Horwich/Bolton area but that he also worked in the south of England for 18 months. It is necessary to consider, to the extent relevant to Mr. Alger’s employment status, whether Mr. Alger did the work that he described at the Woodford Bridge site.

Mr. Alger said that the contractor provided all the tools and he provided his labour only. He was moved from church to kitchen and appears to have been alongside and possibly within the demolition gang, for two or three weeks as they pulled out the boiler and pipework from within the boiler room, including removing the insulation. The evidence points to Mr. Alger at least being alongside the demolition as he would not have known the detail - including panels being pulled off with hammers and that “it was dusty as the work was done” and that “there were clouds of dust around me”- if he had not been in the room.

Mr. Alger describes taking down the old ceiling in the kitchen and how the fitters knocked off the lagging by hand. Weighing up Mr. Gale’s evidence that the description of this sort of work belonged to a different era, I consider the likelihood of Mr. Alger mixing up the Woodford Bridge project with earlier work. Mr. Gale agrees that there was a boiler room, that there was an alert around possible asbestos in the boiler room and that there was an extension to the kitchen. This provides some support for Mr. Alger’s account. In addition, the conversion of a church is a singular project and likely to be remembered as such when compared to other types of work Mr. Algar undertook. It is unlikely that Mr. Alger has mixed up the work he did at the Woodford Bridge site with other contracts he had carried out during earlier years.

Other than a flat denial as to Mr. Alger’s description of his work and those around him, Mr. Gale does not provide an alternative account as to how the demolition and rebuilding occurred. Whilst I am determining a preliminary issue and not determining Mr. Alger’s exposure to asbestos at Woodford Bridge, the nature of the work is relevant to the employment status. The work is labour and not brick laying. Mr. Gale was vague about the work in the church and kitchen, despite visiting the Woodford Bridge site on a weekly basis.

Mr. Gale also was adamant in his first statement and in parts of his evidence, that direct recruitment was not the norm when he was employed by Clayton Bowmore, unless it was for work that was quite small in size and so it was unreasonable to engage a specialist company. However, this evidence was contradicted by the advertisements from Clayton Bowmore for bricklayers and joiners and bricklayer gangs across the country and for large scale projects. Mr. Gale, in evidence, contradicted his second statement where he had addressed seven adverts in 1987 for direct recruitment of joiners and bricklayers in Hull and said that they for a social housing project converting a warehouse in to flats, before his involvement in Clayton Bowmore. In evidence he said that he actually had been the site manager on the Hull contract and therefore had to accept that Clayton Bowmore directly recruited local bricklayers during his time with the company.

Considering Mr. Alger’s description of working for a bricklaying contractor, I was taken to the transcript of the case of Scobie v Clayton Bowmore Ltd. (29 January 1990). It sets out the details of the JCT Standard Form of Building Contract entered into by the Defendant and Techno. There is no evidence as to the identity of the other 16 sub-contractors and the evidence of there being a specialist bricklayer contractor is reliant on Mr. Gale, who himself was vague and contradicted himself in his evidence, and struggled to reconcile the advertisements for direct recruitment with his first statement. I am not persuaded that there likely was a specialist bricklayer contractor on the Woodford Bridge contract. Indeed, it is a reasonable inference that Mr. Alger presumed that Clayton Bowmore was the bricklayer contractor. They were active in the north of England, expanded rapidly in the 1980s and undoubtedly had developed a reputation in housebuilding. Mr Alger was from Horwichand worked in the northwest in the 1980s. Clayton Bowmore worked and advertised for bricklayers in the northwest in the 1970s and 1980s, prior to and after the Woodford Bridge project.

Further, Mr. Gale gave evidence that at the time of Woodford Bridge project, Clayton Bowmore would provide materials and that a subcontractor would provide the labour. Mr. Alger stated that he provided his labour and the contractor provided all the tools and set his hours. He said that he worked exclusively for the contractor. Further, the work described by Mr. Alger was not bricklaying but labour. I reject that he has mixed up this work with another contract, although this was not urged upon me by the Defendant and I therefore accept that Mr. Alger was working in labour work at the Woodford Bridge site, as well as moved to different parts of the site – from church area to kitchen area.

As to whether Mr. Alger worked for a sub-contractor who provided the labour to Clayton Bowmore who provided the tools or whether Clayton Bowmore was the contractor, I consider the evidence that Clayton Bowmore continued to recruit directly in the late 1980s, including using advertisements and signs at the site. The accounts pointed to increased numbers of employees during the time of the Woodford Bridge project. I also considered Mr. Alger’s statement where he refers to the contractor providing the tools. It is a reasonable inference that Mr. Alger was aware of the existence of an overarching contractor (Techno), as Mr. Gale recalls that Techno alerted Clayton Bowmore to the presence of the boiler room and pipework. Mr. Alger also was not rigid in use of employment terms and, in his statement, referred to having worked as a “subcontractor” for housebuilders when he was self-employed and he worked for the same contractor for long periods until the job was finished. This was an example of likely being directly employed by the housebuilder, although Mr. Alger thought he was a subcontractor. Mr. Gale also referred in his second statement, to Clayton Bowmore’s recruitment of Bricklaying Gangs as being an example of a subcontractor. He accepted in evidence that this hiring related to gangs of bricklayers and was direct engagement by Clayton Bowmore.

Overall, Mr. Gale was a witness who approached his evidence in a broad way and appeared to rely on memory rather than documents. When he was referred to documents, he changed his evidence in his statements. His memory was shown not to be reliable. Also, Mr. Gale was not able to satisfactorily reconcile the widespread advertising by Clayton Bowmore for direct recruitment of bricklayers and bricklaying gangs with his first statement which contradicted this as a business approach. Mr. Gale had no answer for the increase in employees on the accounts over this relevant period. He was indistinct on the work done in the church and kitchen, and the result of the asbestos survey. This is surprising as identifying asbestos and how it would be dealt with, including instigating a specialist asbestos subcontractor, was part of his job.

During cross-examination, Mr. Gale accepted that during the Woodford Bridge project there would be a sub-contractor providing labour where Clayton Bowmore provided the tools. Mr. Alger’s statement provides strong evidence that he was working on the site as a labour-only bricklayer.

The evidence supports that Mr. Alger either was recruited through a sub-contractor providing labour to Clayton Bowmore with Clayton Bowmore providing the tools or directly by Clayton Bowmore. I therefore turn to my conclusion on the preliminary issue.

Clayton Bowmore were advertising for bricklayers for ten years from the late 1970s to the late 1980s. Mr. Gale’s evidence was that, when he joined, the majority of tradespeople in Clayton Bowmore, were bricklayers and joiners. I note that the joinery division developed later, from 1983. It is a reasonable inference Mr. Alger classified Clayton Bowmore as a bricklayer contractor. It also might be that he considered Clayton Bowmore in the same way that he considered working for housebuilders. The Defendant’s evidence relies heavily on Mr. Gale. However, his evidence repeatedly contradicted itself and, outside broad assertions and information in the Scobie judgment, he provided no detail on recruitment for the Woodford Bridge project. At various points, Mr. Gale emphasised that he was remembering a project 37 years ago. Mr. Alger’s description of how he worked on the Woodford Bridge project, in his statement, is detailed and compelling as to the type of work he carried out. It is not bricklaying. It is labour. Mr. Alger states “I supplied my labour only”.

The only question, therefore, is whether Mr. Alger was directly employed by Clayton Bowmore or whether he was engaged by a labour only sub-contractor, contracted to Clayton Bowmore to provide labour to the refurbishment project. Reviewing all the evidence, including lack of evidence of Clayton Bowmore’s nominated subcontractors, on the balance of probabilities, the contractor Mr. Alger referred to in his statement is more likely than not to be Clayton Bowmore and his recruitment likely was either through word of mouth, or an advertisement, including on a site board.

Considering the scenarios in the preliminary issue, I find on the balance of probabilities, that Mr. Alger was directly recruited by Clayton Bowmore.

There be judgment for the Claimant on the preliminary issue. The deceased, Eric Alger was directly employed by the Defendant on the Woodford Bridge project.

The Defendant shall pay the Claimant’s costs of the Preliminary Issue.