Mr J Duffy (Counsel) For the v Mr N Henry (Consultant) — 2020

The tribunal found that Mr Foster was an employee of Oakleaf Joinery Ltd from 16 August 2018 to 12 April 2019. It accepted his evidence that he had been engaged to work personally for OJL, under Mr Short's direction, for £80 per week, with no right of substitution and with sufficient mutual obligation and control to satisfy the employment-status test in s.230 ERA 1996. On that basis, the tribunal rejected OJL's case that he was only doing work experience.

It also rejected the case that there had been a TUPE transfer from OJL to Oakleaf Building Ltd. The tribunal found that OJL's business was a joinery business, that OBL did not itself undertake joinery work, and that the relevant joinery activities did not transfer to OBL. The machinery associated with OJL was later passed directly to Shoreditch Joinery, and the tribunal concluded that neither a transfer of an economic entity nor a service provision change was made out.

On wages, the tribunal held that the claim against OJL was in time because ACAS early conciliation extended the limitation period under s.23 ERA 1996 and Luton BC v Haque. It found that Mr Foster had been paid £80 per week for 37 hours, equivalent to £2.16 per hour, when the applicable NMW rates were £5.90 and then £6.15. The claim against OBL was also upheld for the period 15 April 2019 to 17 May 2019, when the same rate of pay continued and the underpayment was £147.55 per week.

The automatic unfair dismissal claim failed. Although the tribunal accepted that on 5 July 2019 Mr Foster raised the issue of his wages and back pay, it found, applying s.104A ERA 1996 and the burden described in Kuzel and Ross v Eddie Stobart, that the principal reason for dismissal was poor attendance and his request for three weeks off to work in Geneva. The tribunal therefore dismissed the unfair dismissal claim because the dismissal was not principally for asserting NMW rights. The tribunal also upheld the separate s.11 NMWA 1998 complaint that OBL failed to allow access to records after a production notice, and made the mandatory award of £656. Holiday pay and other remedy issues on the wage claims were left for further submissions and a separate remedy hearing.