Mrs M Brennan v Fresh Transformations Limited trading as Fresh Doors — 2023

This was a preliminary hearing about whether Mrs M Brennan was an employee or worker before 20 January 2020 and whether she therefore had the two years' continuous service needed to bring an unfair dismissal complaint. The tribunal accepted that she was originally offered a written employment contract by Fresh Doors Ltd on 29 December 2016, with a start date of 3 January 2017, 12 hours' work per week, £10.50 per hour, holiday pay, sickness arrangements and other employment terms. It found that a later oral discussion only altered the method of payment, not the underlying contract of employment.

Applying the statutory wording in section 230 ERA 1996 and the authorities it cited, including Ready Mixed Concrete, Carmichael, Autoclenz, Uber and Sejpal, the tribunal found that the claimant worked personally under the respondent's control and that the overall features of the relationship were consistent with employment. It relied on the claimant working regular hours from the respondent's premises, using the respondent's equipment, receiving holiday pay and sick pay, and being described in writing to third parties as employed by the business. It held that she was an employee of Fresh Doors Ltd between 3 January 2017 and 30 September 2019.

The tribunal then found that the sale of the business to the respondent on or around 1 October 2019 was a relevant transfer under TUPE regulation 3, and that the claimant was assigned to the transferred business. It held that her contract transferred under regulation 4 to KD and then to the respondent, despite the business sale agreement stating that there were no employees. The tribunal found that the claimant's employment continued on the same terms after the transfer, with only the tax and National Insurance treatment later being regularised when she was moved onto payroll in January 2020. It concluded that she had continuous employment from 3 January 2017 until 4 November 2020 and therefore had the service required by section 108 ERA 1996 to pursue an unfair dismissal complaint. The substantive claims were left for a later hearing.