Mr N Bindall-Edwards, counsel For the v Respondent — 2017

The claimant worked for North Bristol NHS Trust as a Bank Health Care Assistant from 14 May 2012 until 11 May 2016. The tribunal found that, during each assignment, she provided personal service, was subject to the Trust's day-to-day direction, wore its uniform, followed its policies and procedures, and was paid through payroll rather than by invoice. It therefore held that she was employed by the respondent within the meaning of section 230 ERA 1996 while on assignment.

The tribunal rejected the respondent's argument that the written terms and the practical arrangements showed no employment relationship at all. It accepted that the claimant was under no obligation to accept offers of work, but found that once she accepted and started an assignment she was obliged to complete it and the Trust was obliged to provide work and pay her. It also noted that the contract and the bank staff procedures referred to her as an employee and included grievance and disciplinary provisions.

On continuity of service, the tribunal held that there was no global or umbrella contract spanning the non-working periods because there were no mutual promises as to future performance during breaks, and the written terms said there was no obligation either way. However, it found that section 212(3)(c) ERA 1996 applied because, by arrangement or custom, the claimant was regarded as continuing in employment for some purposes during the gaps between assignments. In reaching that conclusion it relied on the parties' practice, the claimant's use of work email and the online booking system, the requirement to keep availability information up to date, the reference to her as an employee, and the expectation that absences from work would be temporary.

The tribunal also considered section 212(3)(b) ERA 1996 and concluded that it did not apply because there had been no temporary cessation of work. Its finding was that work remained available, including at weekends, and that the claimant did not take those shifts because they did not fit her preferred pattern. The result of the preliminary hearing was that the unfair dismissal claim was not dismissed for lack of employee status or insufficient qualifying service, and the matter was directed onward for substantive hearing.