Ms P Mills v Phoenix Social Enterprise Ltd — 2023

The tribunal decided a preliminary issue on the claimant’s employment status while she worked for Phoenix Social Enterprise Ltd on the Chimes project between 3 May 2022 and 4 July 2022. It found that there had been no clear agreement at the outset about whether the claimant would be an employee or self-employed, and that the respondent had a casual approach to documentation. The tribunal found that the claimant was not an employee within s.230(3)(a) ERA 1996, but was a worker within s.230(3)(b) ERA 1996 because she undertook personally to perform work or services for the respondent and was not carrying on a profession or business undertaking of her own.

In reaching that conclusion, the tribunal accepted that the claimant was appointed quickly to replace a previous Project Manager and that she was expected to complete the remaining Chimes outputs. It found that she was given project materials, contact details and examples of previous work, but was then largely left to deliver the outputs as she saw fit. The claimant could work from home or the office, used her own computer and software when working from home, and was not subject to day-to-day direction about how, when or where to do the work. The tribunal also found that the respondent’s use of a timesheet wording referring to ‘employee’ did not assist because the form came from the EU funding arrangements and was not created by the respondent.

The tribunal rejected the respondent’s contention that the claimant could send substitutes. It found that the claimant was required to provide personal service as Project Manager and that the examples relied upon by the respondent did not show a contractual right of substitution. It also recorded that the claimant was not introduced to or integrated with other Project Managers, was not subject to disciplinary or grievance procedures, and was not given a pay slip or other payment record for the May advance. The tribunal cited Ready Mixed Concrete, Express & Echo v Tanton, Macfarlane, Staffordshire Sentinel v Potter, Autoclenz v Belcher, Carmichael v National Power, Clark v Oxfordshire HA and Hall v Lorimer in its analysis. As a result, the claims for unfair dismissal and breach of contract were dismissed, and the tribunal noted that the remaining claims for unlawful deductions from wages, holiday pay, written particulars and itemised pay slips would proceed to a separate one-day hearing.