Claimant v Nation v FC Douch & Sons (Funerals) Ltd — 2022

The claimant, a professional embalmer, worked for the respondent on an as-and-when-required basis from about 2004. Although documents from 2007 and 2011 referred to her as an employee and to PAYE, policies and a staff handbook, the tribunal held that those labels did not reflect the legal reality. It found that she set her own fees, invoiced for work, could and did work for other funeral homes, told the respondent when she was unavailable, and was not subject to appraisals or meaningful direction.

Applying section 230 of the Employment Rights Act 1996 and the authorities cited on employee and worker status, the tribunal held that there was no irreducible minimum of obligation: the respondent was not bound to offer work and the claimant was not bound to accept it. It further found that the claimant operated her own business and supplied services to the respondent as a client or customer, rather than working as the respondent's employee or limb (b) worker. The claimant's PAYE treatment, pension auto-enrolment and an isolated sick pay payment were acknowledged, but were insufficient to change that conclusion.

The tribunal therefore held that it had no jurisdiction to determine the substantive claims and dismissed the unfair dismissal, holiday pay and notice pay claims. No remedy was awarded.