Mr W Montgomery v Stow Outdoors Limited — 2025

At a preliminary hearing on 3 April 2025, Employment Judge Cuthbert considered whether Mr W Montgomery was an employee of Stow Outdoors Limited during the relevant period from 22 September 2021 to 2 July 2022, so that he could satisfy the two-year qualifying service requirement for an unfair dismissal claim based on an alleged dismissal on 4 December 2023. The judgment also notes a separate breach of contract claim for lack of notice, but the decision recorded in the reasons is directed to employee status and the unfair dismissal claim.

The tribunal found that the working relationship during the relevant period was sporadic, casual, occasional and ad hoc. It accepted the respondent's evidence that the claimant was asked whether he was available for work and could choose whether to accept the shifts offered. The tribunal relied in particular on WhatsApp messages in which Mr Slatter asked if the claimant was free to work and said, if not, there were no problems. It found the payment arrangements also pointed away from an employment relationship: the claimant invoiced for work, charged VAT for much of the period, and was paid outside PAYE, including through his consultancy business Ten Ltd.

Applying the law on employee status and continuity, including the need for personal service, mutuality of obligation and control under section 230 ERA 1996, and the continuity rules in section 212 ERA 1996, the tribunal held there was insufficient mutuality of obligation for a contract of employment during the relevant period. It also found that the gaps between assignments were not covered by any arrangement or custom preserving continuity of employment. As a result, Mr Montgomery was not an employee during the relevant period, did not have two years' continuous service by the alleged dismissal date, and the unfair dismissal claim was dismissed under sections 94 and 108 ERA 1996.