Mr Daniel Swain v Mercedes Benz South West — 2020

This was a preliminary hearing on employment status. Mr Swain said he had been employed by Mercedes Benz South West; the respondent said he was a casual worker. The tribunal accepted that he worked personally as a driver delivering new cars, that there was some degree of control over how deliveries were carried out, and that the arrangements had continued for many years without a written contract signed by Mr Swain. It also noted that he had worked alongside other commitments and had been free to do work for other people, including Porsche.

The tribunal focused on mutuality of obligation. It found that drivers were contacted for their availability, work was offered, and they could accept or refuse it. There was no direct evidence of any sanction for not being available or turning down work, and the fact that the arrangement continued over time did not make it a sham or create a fixed pattern of employment. The tribunal referred to the casual worker contract used by the respondent as reflecting the company's view of the relationship, although Mr Swain had not signed or received it.

The tribunal concluded that there was no global or umbrella contract and that the relationship did not amount to a contract of employment, even on individual assignments. It held that Mr Swain came within the broader definition of worker because he performed the work personally, but he was not an employee. As a result, the tribunal had no jurisdiction to hear the complaint of unfair dismissal and the claim was dismissed. The tribunal also noted that a £250 long-service voucher had been awarded with a reference to the employment handbook, but it did not treat that as showing that the handbook generally applied to the drivers.