Commission-only literary agent held not to be an employee for unfair dismissal claim
A literary agent paid solely by commission lost his unfair dismissal claim after the tribunal ruled he was not an employee. The case shows the importance of control, mutuality of obligation, and personal service in determining employment status.
1 min read · Last updated 18 May 2026
Case details
- #literary-agent
- #commission-only
- #mutuality-of-obligation
- #control
- #personal-performance
- #employment-status
Key facts
- The claimant worked as a literary agent for the respondent on a commission-only basis.
- There was no written contract between the parties.
- The claimant worked from home, provided his own equipment, had no fixed hours, and paid his own tax.
- The respondent terminated the claimant's contract with effect from 31 August 2018.
- The claimant was not registered as an employee in the respondent's accounts.
Timeline
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Agreement to become agent
The claimant agreed to become a fiction agent for the respondent, paid 10% commission on sales.
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Became partner in Thistle Publishing
The claimant became an equal partner, director, and shareholder in Thistle Publishing Ltd, a separate business run by Mr Lownie.
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Termination of agency agreement
Mr Lownie terminated the claimant's contract with the respondent due to complaints from authors and conflict over Thistle.
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Claim presented to tribunal
The claimant submitted claims for unfair dismissal and unlawful deduction from wages.
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Preliminary hearing
Employment Judge Hyde identified preliminary issues including employment status.
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Substantive hearing (day 1)
The tribunal heard evidence and submissions on the preliminary issue of employment status.
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Substantive hearing (day 2)
The tribunal concluded hearing and reserved judgment.
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Judgment issued
Employment Judge Andrews held that the claimant was not an employee, dismissing all claims.
The legal issue
The tribunal had to decide whether a commission-only literary agent was an 'employee' under section 230(1) of the Employment Rights Act 1996, focusing on the three essential elements: mutuality of obligation, personal performance, and control.
The outcome
The tribunal dismissed the claimant's claims for unfair dismissal and unlawful deduction from wages because he was not an employee.
Key reasons:
- The claimant worked from home, provided his own equipment, had no fixed hours, and paid his own tax.
- There was no obligation on the respondent to provide work or on the claimant to accept it.
- The respondent did not exercise sufficient control over how the claimant performed his work.
- The claimant was not registered as an employee in the respondent's accounts.
No compensation was awarded as the claims were dismissed.
Lessons & takeaways
- If you work on a commission-only basis with no fixed hours or equipment provided, you may not be classed as an employee, even if you have an ongoing relationship.
- Employment status depends on the reality of the working relationship, not just what the parties call it. A written contract can help clarify status.
- For a successful unfair dismissal claim, you must first establish that you are an employee. Workers and self-employed contractors do not have the same rights.
- Tribunals look for mutuality of obligation – an obligation on the employer to provide work and on the employee to accept it – as a key factor.
The case in practice
This case illustrates the difficulty that commission-only workers face in establishing employee status. The literary agent had worked for the agency since 2012, but the tribunal found that the relationship lacked the hallmarks of employment. He worked from home, used his own equipment, set his own hours, and paid his own tax. There was no obligation on the agency to provide him with work, nor on him to accept any work offered. The agency did not control how he performed his work, and he was not included on the payroll as an employee.
What the agency could have done differently
The Andrew Lownie Literacy Agency could have reduced the risk of a claim by having a written agreement that clearly stated the agent's status as self-employed. However, even without a written contract, the tribunal found that the reality of the relationship pointed away from employment. The agency's decision to terminate the relationship due to complaints and conflict was not challenged on its merits because the claimant lacked the fundamental right to claim unfair dismissal.
Why this matters
This case is a reminder that employment status is a gateway issue. Without employee status, workers cannot bring claims for unfair dismissal, statutory redundancy pay, or certain other rights. For those in similar commission-only arrangements, it is important to understand that a long-term working relationship does not automatically confer employee status. The tribunal applied the well-established tests of mutuality of obligation, control, and personal performance, and found that the claimant did not meet the threshold. The decision underscores that each case turns on its specific facts, and that the absence of a written contract can make it harder to argue for employee status.
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